Fuller v Reel Trans Pty Limited

20739/2001 - ALAN ANTHONY FULLER v REEL TRANS PTY LIMITED

JUDGMENT (Strike out statement of claim - injuries -defect - Motor Accidents Compensation Act) 1 MASTER: By notice of motion filed 17 December 2002, the defendant seeks that the statement of claim be struck out. The defendant relied on the affidavit of Andrew John Kemp sworn 17 December 2002. 2 If the injury falls within s 3 of the Motor Accidents Compensation Act 1999 (MAC Act), the statement of claim must be struck out. The plaintiff is unable, absent the issue of an appropriate certificate under ss 92 and 94 of the MAC Act, to maintain the present proceedings. If the claim does fall within the operation of that Act, for the reasons identified in the decision of Master Malpass in Akhrass v Allianz Australia Insurance & Anor [2002] NSWSC 352, confirmed by Dunford J upon appeal [2002] NSWSC 772, the action is not maintainable in the absence of such a certificate. It is common ground between the parties that no such certificate has been issued.

The accident 3 The plaintiff has described how the accident occurred to Mr Max Hely an engineer (Ex A). For the purposes of this application, I have taken the plaintiff's account of the accident from this report. 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. 7 Section 3 of the MAC Act defines "injury" as: "Injury: (a) means personal or bodily injury caused by the fault of the owner or driver of a motor vehicle if, and only if, the injury is a result of and is caused during: (i) the driving of the vehicle, or … (iv) such use or operation by a defect in the vehicle." 8 The defendant submitted that firstly, the injury resulted or was caused by the driving of the forklift. As stated above, it is not known whether the engine was turned on but it is known that the plaintiff was standing on the engine cowl. In my view, it is arguable that the plaintiff's injury was not caused by the driving of the forklift. This argument fails. 9 Alternatively, the defendant submitted that the plaintiff was injured "during such use or operation by a defect in the vehicle". Both parties referred to two relevant decisions namely, Zurich Australian Insurance Limited v CSR Limited (2001) 52 NSWLR 193 and Pender v Power Coal Pty Limited [2002] NSWSC 925. In Zurich at 201 (para 31-32) the court held that the word "such" in sub-para (iv) of the definition was a reference to the preceding use of the precise words which immediately follow it, that is "use and operation". The words "use and operation" identify a time dimension for the existence of the defect. 10 For the plaintiff's injury to fall within s 3(iv) it is necessary to consider whether the injury was caused during such use or operation by a defect in the forklift. In Zurich the New South Wales Court of Appeal at 202-207 comprehensively considered what constitutes a defect. The starting point of the court's analysis was a passage by Lockhart J in Topfelt Pty Ltd v State Bank of New South Wales Ltd (1993) 47 FCR 226 at 237, where he stated: "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)." 11 After examining a line of authorities, Spigelman CJ (with whom Mason P and Handley JA agreed) concluded at 206-207: "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.

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 of 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.

71 The Appellant's submissions on these grounds should be rejected." 12 As stated by Wood CJ in Pender at para 55, it is not to the point that the case could also answer the characterisation of one based upon an unsafe system of work, or upon the failure of an employer to provide appropriate plant or equipment or to properly supervise a work activity. There may be a number of arguments that the plaintiff could raise to suggest that the cause of the injury was other than that involving a motor vehicle, but if an argument can be made that the injury was caused during the use or operation by a defect in the vehicle, the statement of claim should be dismissed. 13 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. 14 In relation to costs, the plaintiff's case was ready when this issue arose, ie. the plaintiff's costs. The plaintiff will now be obliged to commence fresh proceedings. As Wood CJ stated in Pender at para 61 "It must be said that it is most regrettable that this point was taken by the defendant so late in the proceedings. However, an obligation did rest with the plaintiff to commence the action in the appropriate format, and to follow the requirements of whichever Act applied to the proceedings." I have respectively adopted the approach of Wood CJ. These proceedings were otherwise ready when this point was taken by the defendant but the plaintiff was obliged to comply with the requirements of the MAC Act. The defendant is to pay the plaintiff's costs up to and including the 18 December 2002 (the date of the last conference) and thereafter each party is to pay its own costs. 15 The court orders that:

(2) The defendant is to pay the plaintiff's costs up to and including the 18 December 2002 (the date of the last conference) and thereafter each party is to pay its own costs. **********

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