Fuller v Reel Trans Pty Limited [2003] NSWSC 336 | Case summary

JUDGMENT 1 HIS HONOUR: This is an appeal from a decision of Master Harrison. On 13 February 2003 the master ordered on a motion filed by the respondent to this appeal that the appellant's statement of claim should be dismissed. The master ordered that the respondent pay the appellant's costs up to and including 18 December 2002, which was the date of the last conference, and that thereafter each party was to pay his and its own costs. 2 The issue on this appeal is a narrow one and concerns the meaning of "injury" for the purposes of s 3 of the Motor Accidents Compensation Act, 1999. 3 The appellant Alan Anthony Fuller commenced proceedings by statement of claim against the respondent Reel Trans Pty Limited seeking to recover damages in respect of injury allegedly sustained in the course of his employment with the respondent on 23 May 2000. The appellant gave a description as to how he claims he was injured to an engineer whose report was tendered before the master and upon the content of which the master drew. I record here the outline of facts set out in paras 3, 4, 5 and 6 of the judgment of the master: "3 …The plaintiff spent 70% of his time driving forklifts and 30% of his time driving trucks. One of the plaintiff's tasks was to use the forklift truck to move large reels of paper from their storage location within the warehouse out to the yard or onto a truck for delivery. In order to record the numbers, the plaintiff would either ask the truck driver to call out the reel number to him when he was placing the load on the truck or, if there was no truck in attendance, he would simply move the reels into the yard, and record the numbers as he collected each reel. Depending on the layout of the stored reels within the warehouse, it was sometimes possible for the plaintiff to see the labels from his position in the driver's cab of the forklift. 4 However, on occasions, he would have to pick up reels, which were stored between and somewhat further back from other adjacent rows of stored reels. On those occasions, he would have to drive the forklift directly forwards towards the target reels. As he was not able to easily read the print on the labels by looking directly forward from his seated driving position - because of the intervening grab and superstructure of the forklift and a visor located at the forward edge of the overhead roll cage on the forklift - the method the plaintiff used to view the labels from the forklift (and which he and others have used on frequent occasions) involved stepping out from the driver's compartment and stepping up onto the side panel of the engine cowl. He would then turn and, while standing on the edge of the engine cowl and holding onto the side of the overhead roll bar, look past the intervening forklift structures to the labels on the reels. 5 According to the plaintiff, the number of times he was required to transport reels from the warehouse varied depending on the particular orders on a given day. He estimates that, on an average, he would perform this task from three to as many as 20 or so times per day. He would usually pick up two reels at a time with the forklift grab. 6 The accident occurred at approximately 10.30 am on 23 May 2000, when the plaintiff was in the process of removing reels from a location between two surrounding rows of reels. There was just enough room for the forklift to drive directly forward into the gap between the two adjacent rows. The plaintiff drove forward and stopped just short of the reels. He then exited the driver's cab on the left hand side and stepped up onto the side panel of the engine cowl in order to read the serial numbers of the two reels he was about to pick up. At the time, the plaintiff was wearing Reebok running shoes. He recalls that he had stepped up onto the engine cowl and believes he may have been in the process of turning, in order to orient himself towards the reels, when one or both feet slipped from the cowl and he fell backwards. He fell partly onto a reel before falling to the concrete floor. At this stage there is no evidence as to whether or not the engine was running. For the purposes of this application, the defendant is the owner of the unregistered forklift." 4 Section 151E of the Workers Compensation Act provides: "(1) This Division applies to an award of damages in respect of: (a) an injury to a worker, or (b) the death of a worker resulting from or caused by an injury, being an injury caused by the negligence or other tort of the worker's employer. (2) This Division does not apply to an award of damages to which Part 6 of the Motor Accidents Act 1988 or Chapter 5 of the Motor Accidents Compensation Act 1999 applies. " (Emphasis added) 5 The critical issue before the master and before this Court is whether or not the regime imposed by the Motor Accidents Compensation Act, 1999 in relation to injuries suffered governed the appellant's claim. If it did, then the relevant requirements of that Act had to be complied with and it is common ground that there has not been compliance with such requirements. This summary necessitates some explanation by reference to the provisions of the statute. 6 The definition section is s 3, and in that section "claim" and "injury" are included in the relevant definitions: " 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 ." " 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

(b) the amount of damages for that liability. (2) Such an assessment is to be made having regard to such information as is conveniently available to the claims assessor, even if one or more of the parties to the assessment does not co-operate or ceases to co-operate. (3) The assessment is to specify an amount of damages. (4) The claims assessor must, as soon as practicable, after an assessment issue the insurer and claimant with a certificate as to the assessment. (5) The claims assessor is to attach a brief statement to the certificate, setting out the assessor's reasons for the assessment. (6) If the Principal Claims Assessor is satisfied that a certificate as to an assessment or a statement attached to the certificate contains an obvious error, the Principal Claims Assessor may issue, or approve of the claims assessor issuing, a replacement certificate or statement to correct the error." 12 Section 108 is found in Part 4.5 of the Statute and is in these terms: "(1) A claimant is not entitled to commence court proceedings against another person in respect of a claim unless: (a) the Principal Claims Assessor has issued a certificate in respect of the claim under section 92 (Claims exempt from assessment), or (b) a claims assessor has issued a certificate in respect of the claim under section 94 (Assessment of claims)…" 13 It is common ground between the parties that the effect of the above provisions of the Act is that the proceedings here commenced by the appellant cannot be maintained if the Motor Accidents Compensation Act applies in the absence of an appropriate certificate under s 92 or s 94: see Akhrass v Allianz Australia Insurance & Anor [2002] NSWSC 352, confirmed on appeal [2002] NSWSC 772. This appellant has the benefit of no certificate, so the present proceedings in this Court cannot be pursued if the Motor Accidents Compensation Act applies to them. 14 The learned master was referred to the judgment of Wood CJ at CL in Pender v Power Coal Pty Limited [2002] NSWSC 925 and the decision of the Court of Appeal in Zurich Australian Insurance Limited v CSR Limited (2001) 52 NSWLR 193. It will be necessary to refer to those decisions shortly but I record firstly what the learned master said in para 13 of the judgment under appeal: "The statutory context is compensation for personal injury arising from the person in control of the circumstances in which the machinery is operational. It was part of a system of work whereby the plaintiff stood on the cowl of the engine in order to read the serial numbers of the reels. It could be argued that the forklift was not intended to be used in the manner it was. However, the question to be answered is whether it is arguable that the forklift was fit for the purpose which it was intended to be put. It can be argued that the forklift was not fit for the purpose, namely, to enable the plaintiff to ascertain the reel serial numbers. Hence, it is my view that it is arguable that there was a defect in the forklift , and thus the plaintiff's case falls within s 3(iv) of the MAC Act . That being so, the plaintiff's claim should be dismissed. The plaintiff is to comply with the notice provisions of the MAC Act and commence fresh proceedings." (Emphasis added) 15 Dr Morrison submitted that the master misdirected herself in the above passage to which emphasis has been added, and I do not understand Mr Hoeben in his oral submissions to have argued to the contrary. In any event, I am persuaded by Dr Morrison's submissions that error has been established. It did not suffice for the respondent to this appeal to establish that it was arguable that in the circumstances of the appellant's case it fell within the definition of "injury" in s 3(iv) of the Motor Accidents Compensation Act, 1999. If it was only arguable that it did, it was also arguable that it did not, and summary relief is inappropriate where there are serious questions of fact to be decided. The issue presented by the motion, and to be considered on this appeal, is whether in the circumstances of this case the plaintiff suffered injury within the definition of "injury" in s 3 of the Act. 16 The respondent's written submissions before the master recorded that "for the purposes of the motion only" (that is the motion to strike out the statement of claim) the respondent relied upon the system of work and the detailed circumstances of the accident set out in the report of the engineer, Mr Hely. This accounts for the outline of facts expressed by the master and set out in para 3 above. I was invited to proceed upon that same outline for the purpose of this appeal. I shall do that, but with reservations to which I shall return later in this judgment. 17 Mr Hoeben has not contended that on the appellant's version of events as conveyed to the engineer his injury was "a result of and [was] caused during the driving of the vehicle". In my opinion an argument to that effect could not be maintained. The vehicle was not being driven when the appellant was injured and, indeed, it cannot be assumed that the engine was running at the time that the appellant is alleged to have slipped. 18 Nor was the injury a result of and caused during "a collision or action taken to avoid a collision with the vehicle". Nor was the injury a result of and caused during "the vehicle's running out of control". The only part of the definition of injury that could enliven the operation of the Motor Accidents Compensation Act is (a)(iv). 19 The words "such use or operation" in the definition (a)(iv) go back to the words "in the use or operation of the vehicle" in the opening words of para (a): see Zurich Australian Insurance Limited v CSR Limited (supra) at para 32 where Spigelman CJ said: "The word 'such' in (iv) is, in my opinion, a reference to the preceding use of the precise words which immediately follow it, i. e. 'use and operation'. The repetition of this phrase in (iv) was necessitated by the fact that the sub-paragraphs are all qualified by the word 'during'. It makes sense to speak of something occurring 'during' driving, a collision or running out of control. It makes no sense to speak of something occurring 'during' a defect. The words are repeated to identify a time dimension for (iv)." 20 For relevant purposes then, "injury" means "personal or bodily injury caused by the fault of the owner…in the use or operation of the vehicle…caused during…such use or operation by a defect in the vehicle." 21 The notion of "operation" can be put to one side as this vehicle was not in "operation" when it is claimed that the appellant suffered his injury, but, if there was fault by the owner, was the injury caused during the use of the vehicle by a defect in the vehicle? 22 It is the appellant's case, as pleaded, that the respondent, as his employer, was negligent in the failure to provide a safe system of work. Some safe alternative means to that adopted by the appellant to gain access to and to record the serial numbers of the paper rolls ought to have been provided. In the report of Mr Hely, in evidence before the master and on this appeal, the author proposed simple preventative measures available to the respondent to avoid the risk of injury associated with the discharge of the task in hand. I quote from p 8 of his report: "(i) Mr Fuller could have been provided with a set of mobile steps or a mobile platform suitable for safely gaining access to the labels prior to using the fork-lift to remove the reels. (ii) The labels could have been of a type, format and print size that would enable the details to be easily read from a fork-lift operator's cabin. In conjunction with this simple modification management could have ensured that reels were always stacked and oriented so that the labels were prominently visible. (iii) The defendant could have developed and properly implemented a safe working procedure for reading the labels. This could have included the use of the above steps (or similar) and/or the requirement that reels were moved by the fork-lift to an area where they could be placed on the ground and the labels then read, either by the driver or another employee assigned to that task. The effectiveness of such a safe working system requires, of course, that all involved employees be instructed in its procedures, that sufficient resources (whether equipment or personnel) always be available to implement it, and compliance be expected not only by staff but also by the responsible supervisors or managers." 23 The appellant does not, in pleading and particularising the negligence alleged against his employer in his statement of claim, allege any defect in the forklift or in its engine cowling from which the appellant allegedly slipped. 24 However, it must be recognised that it does not necessarily follow that reliance by the appellant on an unsafe system of work takes this injury out of the definition in s 3 of the Motor Accidents Compensation Act. Indeed, a submission to this effect was rejected in Zurich (supra) when the Chief Justice, with whom the other members of the court agreed, said at para 29-30: "29 The first submission was, essentially, one of characterisation. The Appellant submitted that the injury was not caused 'in the use and operation of' the trailer. The injury was caused by an unsafe system of work or in the design of the trailer. Nothing in the language used, or the scope, purpose or operation of the Act, suggests that a dual characterisation of 'fault' is impermissible. The definition applies so long as the fault may be characterised in the way set out within it. It matters not that some other characterisation may also be appropriate. 30 This issue has been determined against the Appellant in this Court. See NRMA Insurance Ltd v NSW Grain Corporation (1995) 22 MVR 317 esp at 319; Balfour Beatty Power Constructions (Australia) Pty Ltd v Government Insurance Office (NSW) (1996) 24 MVR 162 at 163-164; AMP General Insurance v Brett (1999) 27 MVR 492 at 495. In my opinion the reasoning in these cases is correct and should be followed." 25 It is not difficult to give examples of dual characterisation. For instance, if a person suffered injury as a result of brake failure in a vehicle provided by but not properly maintained by his employer, his injury could be considered to have been caused both by fault on the part of the employer in the failure to provide a safe system of work and by fault on the part of the employer in the use or operation of the motor vehicle by a defect in it. Pender (supra) affords another example of dual characterisation. See also the cases referred to by the Chief Justice in Zurich in the passage set out above. 26 Senior counsel for the appellant and senior counsel for the respondent both argued that support for their competing contentions was to be found in the judgment of the Chief Justice in Zurich. In that judgment Spigelman CJ cited Topfelt Pty Limited v State Bank of New South Wales (1993) 47 FCR 226 where Lockhart J said at 237 F-G: "According to its ordinary usage a 'defect' means a lack of absence of something necessary or essential for completeness; a shortcoming or deficiency; an imperfection. A defect according to ordinary understanding is not necessarily something which is of a minor nature, it may be either major or minor. The word 'defect' has been considered by judgments of courts in a variety of contexts: see, for example, Tate v Latham & Son [1897] 1 QB 502 per Bruce J at 506-507 ('defect in the condition'); Dawson v African Consolidated Land and Training Co [1898] 1 Ch 6 ('defect in appointment'); Sanderson v National Coal Board [1961] 2 QB 244 ('patent defect'); Metcalf v Great Boulder Pty Gold Mines Ltd (1905) 3 CLR 543 ('defect in condition'); Hampson v Clyne (1967) 86 WN (Pt 1) (NSW) 321; Re Gagliardi; Ex parte Mount (1984) 5 FCR 52 ('defect' as failure to sign and file a certificate)." 27 Then at para 45 the Chief Justice found language analogous to the concept of injury in s 3 in the language of the Employers' Liability Act 1880 in England. The Chief Justice continued (at para 46): "In an approach which, in my opinion, is applicable to the Motor Accidents Act , machinery etc was found to be 'defective' if it was not fit for the purpose for which it was designed or the use for which it was intended." 28 There then followed in Zurich a review of the relevant English authorities at paras 47 to 58 and also of the High Court decision in Metcalf v Great Boulder Proprietary Gold Mines Limited (1906) 3 CLR 543. I will not here repeat the analysis in those paragraphs. However, the Chief Justice then proceeded at paras 66-68: "66 As these authorities suggest, fine issues of characterisation can arise in the application of the appropriate test to particular facts. The distinction between a 'defect' and 'negligent user' may not always prove helpful, as many sets of facts are capable of being characterised in both ways. The issue is unlikely to arise often under the Act, because one of the other sub-paragraphs of the definition of injury is likely to be applicable in the case of 'negligent user'. 67 The emphasis given by the High Court in Metcalf, and in the English authorities, to the fitness for the use to which the machinery etc is intended to be put is, in my opinion, an appropriate perspective from which to approach the question of a 'defect in the vehicle' for the purposes of the Motor Accidents Act . The statutory context, like that of the English Employers' Liability Acts, is compensation for personal injury arising from the fault of a person in control of the circumstances in which machinery is operated. 68 The defect must be ' in' the vehicle. A vehicle is not 'defective' only because its operation in a particular manner may lead to injury. However, the manner in which it is intended to operate may determine whether there is a 'defect' ' in' the vehicle. 29 In Zurich the plaintiff was injured when he was raising a heavy ramp on the trailer of a truck, a ramp with no mechanical lifting aids. The agreed facts were that each ramp weighed seventy-nine kilograms, and that the force required to lift a ramp into an upright position involved the equivalent of lifting 160 kilograms. It was also agreed that no person should be required to lift, lower or carry loads above fifty-five kilograms without mechanical assistance or team lifting arrangements. The ramp was designed to allow a single person to carry out the lift with only one handle on one side of it. 30 It was decided that there was a defect in the vehicle in that case which involved consideration of the definition of "injury" in s 3 of the Motor Accidents Act 1988. That definition of "injury" was in terms identical with the definition that applies in the present case. 31 In addressing the concept of "defect", Spigelman CJ said this at paras 69-70: "69 In the present case, the Respondent submitted that the absence of any form of hydraulic or mechanical assistant for lifting was a 'defect' for purposes of the Act. The Appellant emphasised the possibility of a team lift as a safe system of work for the trailer in its extant condition. In the circumstances of the present case, the Appellant's characterisation should be rejected. 70 I have concluded above that the design of the trailer was such that it was intended to be used in circumstances where a single worker lifted each ramp. When this happened it was, in my opinion, the use or operation a vehicle in which there was a 'defect' for its intended use. It was not negligent use of a vehicle otherwise fit for the purpose or use to which it was intended to be put." 32 In Pender Wood CJ at CL found injury within the meaning of s 3 of the Motor Accidents Compensation Act 1999 in a colliery accident that it was claimed occurred in these circumstances: a fork lift was used in an attempt to unwind a fifty millimetre reinforced water hose that had been wound around a 750 kilogram metal drum. A steel pipe was placed through the centre of the drum to act as a spindle, and the free end of the hose was anchored to a PJB and the drum was tied to the forklift tines by nylon rope, secured to the horns of the lifting frame. The operator of the vehicle reversed the vehicle pulling the drum along the ground, intending in this way that the hose would be rolled out. In the course of this operation the drum broke loose and rolled on the plaintiff. The Chief Judge at Common Law considered that the plaintiff's case came down to "fault in the use or operation of a motor vehicle", namely the forklift. 33 In Pender reference was made to a number of earlier decisions but their consideration does not assist me in determining the issue in this appeal. So much depends upon the facts of the particular case in determining whether an injury falls within the definition of s 3 of the Act. 34 Pender is clearly distinguishable because its facts enlivened (a)(i) of the definition of "injury". There was fault in that case in the use of the forklift and the injury was caused during the driving of the forklift. 35 Whilst it did concern a definition of injury in terms similar to s 3(iv) of the 1999 Act, it seems to me that Zurich is also distinguishable from the present case. The action of raising and lowering the ramp was part of the normal function of the vehicle and the ramp was designed to allow a single person to carry out the lift, there being only one handle on one side of the ramp. As is apparent from a consideration of para 70 of the judgment of the Chief Justice, the design of the ramp was found to be such that it was intended to be used in circumstances where one worker performed the lifting procedure and such a lift was beyond one person absent mechanical assistance. 36 Mr Hoeben submitted here that even if there was nothing wrong with the forklift per se, that is not to the point. When the forklift was put to the use to which the appellant put it, it was dangerous and defective for that intended use. This was not a "one-off" use in the manner in which the appellant used the engine cowling. Dr Morrison on the other hand submitted that there was no defect in the forklift and that it is no part of the appellant's case that some modification of the forklift was introduced after the appellant's accident or that it should be. The forklift was not to be regarded as defective he submitted, simply because to use it as the appellant used it, in a manner in which it was not intended to be used, led to his injury. 37 Consideration of the various English cases to which the Chief Justice referred in Zurich between paras 47-58 illustrates that very often there is a fine line to be drawn between a situation in which injury is caused by a defect in the condition of an object and when it is not. Indeed, the Chief Justice made an observation to this effect in Zurich (para 66). As I observed earlier, the critical point on this appeal is a narrow one but I have come to the conclusion that Dr Morrison's submissions should prevail. 38 This forklift was not being used by the appellant to perform any forklift function at all. The report by Mr Hely previously mentioned contains a picture of the engine cowling. Plainly the engine cowling was not designed or manufactured as a work platform but to perform the function cowling ordinarily performs. There is no suggestion it is defective for such purpose. Its shape and dimensions were not features of the forklift to be regarded as constituting a "defect" in the vehicle, and it seems to me that the mere fact that the appellant used it in the way he did, did not render the vehicle defective. As the Chief Justice said in Zurich: "A vehicle is not 'defective' only because its operation (or here its use) in a particular way may lead to injury." 39 In my opinion, therefore, on the assumed facts recited in para 3 of this judgment the injury was not caused in the use of the forklift by a defect in the forklift and hence the requirements of the definition of "injury" in (a)(iv) of the definition provision in s 3 are not satisfied. It follows that this appeal should be allowed. 40 Even if a finding that the employer intended that the appellant should use the cowling as he did sufficed to attract the definition of "injury" such a finding would depend upon evidence given at the hearing and could not safely be drawn only from the facts assumed for the purposes of this appeal; I am mindful that in the defence there are no relevant admissions and negligence is denied. For this reason alone, the summary nature of the application before the master was inappropriate. 41 This highlights the dilemma to be confronted by a plaintiff in a situation such as that in which the appellant here finds himself. Section 108 imposes a threshold question and where, in a case such as this, there is a live issue as to whether the Motor Accidents Compensation Act applies, in the absence of a comprehensive agreed statement of facts, that issue can only properly be determined at a costly contested hearing. One possible way of minimising costs in such a case may be by utilising Pt 31 r 2 of the Supreme Court Rules, thereby seeking separate determination as to the application of the Motor Accidents Act. 42 Be that as it may, I consider that the orders here challenged must be disturbed, and for the reasons I have expressed I make the following orders:

Fuller v Reel Trans Pty Limited

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