Garry Connaughton v Pacific Rail Engineering Pty Ltd

Appearances

1. Mr Stone appeared on behalf of the plaintiff and Mr Harben SC on behalf of the defendant.

Background

1. The matter by consent had been listed for hearing to determine the issues of liability and in particular whether the accident was a blameless accident within the provisions of MACA.
2. As injury had been conceded and contributory negligence was not in issue I accepted that it was appropriate to deal with this matter as a separate question independent of issues of quantum.

Evidence

1. Exhibit A is a Google map showing the area of the accident.
2. Exhibit B is a document entitled NSW Police Force - Confidential Situation Report (SITREP) dated 13 July 2011. Relevantly it reads: "Issue At 10:30 AM on Wednesday, 13 July 2011 Gary Connaughton (060360) 51 old of 10A Railway Street Baulkham Hill was involved with a collision with a falling tree. This resulted in the closure of Mount Ousley Road. Mount Ousley. Background At 10:30 AM on Wednesday, 13 July 2011 Gary Connaughton… drove motor vehicle BG - 28 - TX a 2010 Volvo heavy rigid vehicle North along Mount Ousley Road, Mount Ousley - speed 20 km an hour. When approx 100 m West of the intersection of new Mount Pleasant Road the front portion of the vehicle came into contact with a falling tree. At the time of the collision there were heavy winds which caused the tree to break away from its root system and come to rest across all three lanes in both directions. The impact with the tree completely crushed the cabin of the truck trapping the driver by compression. The driver was released after two hours by NSW FB and Rescue. There were no other vehicles involved in this collision."
3. Exhibit C is 22 pages of photographs which have been retrieved from the New South Wales Police Force digital imagery management system. These photographs show the truck after the plaintiff had been removed from the cabin, pages 1 to 10. To remove the plaintiff from the cabin the rescue service in effect cut open the roof of the cabin. Photographs on page 5 show what appear to be branches of the tree on the tray of the truck and on page 6 it appears that the grill at the front of the truck is undamaged although there is damage to the left-hand light area. Photographs at pages 10 to 22 show the tree which has broken off at or just below ground level. Those photographs were obviously taken after the tree had been moved as they are not blocking the lanes of the road.
4. Exhibit D was some footage which was aired on WIN news on the day of the accident. It shows the truck being stationary on the road and emergency services working to extract the plaintiff from the cabin. The footage shows the truck with extensive damage to the bonnet, the roof of the cabin and in particular the metal frame into which the windscreen is normally inserted has been compressed and bent out of shape. The entire roof of the cabin slopes severely down towards the bonnet.
5. Exhibit E is an extract from a police notebook which contains the statement taken from the plaintiff. The Exhibit also contains a typed but unsigned copy of that entry. Relevantly it reads: "Q. Were you the driver of BG-28-TX involved in a collision with a fallen tree on Mount Ousley Road, Mount Ousley at about 10:30 AM on Wednesday, 13 July 2011? A Yep. Q Can you tell me what happened? A I was driving north along Mount Ousley Road in the gutter lane at about 35 km an hour. All I can remember next is a voice yelling out "Are you all right?" About this time I can remember seeing the roof of the truck collapsed, the windscreen busted and the dash crushed. I felt pressure on my legs and could feel blood running down my face."

Plaintiff

1. The plaintiff gave his evidence in a straightforward manner and no submissions adverse to his credit were made on behalf of the defendant. The plaintiff acknowledged that the information contained within Exhibit E is true to the best of his recollection.
2. The plaintiff said he was driving up the hill to Bulli Pass where there are three lanes north and three lanes south. He was travelling in the curb side lane. He was asked if something happened and he replied yes and when he was asked if he remembered what he answered no. His first recollection was a man yelling out and his last recollection is driving up the road and there being nothing on the road in front of him.
3. In cross-examination the plaintiff agreed that he was the only person in the truck, he was operating the controls and had decided to travel in a northerly direction in that lane at that speed. The plaintiff pointed out that the two lanes on the left of the road surface are designated for trucks and that he was in the one furthest to the left. He did not recall telling the police he was doing 20 km an hour and stated he could not recall the exact speed other than to say it would have been somewhere between 20 and 35 km an hour. It was his evidence he knew he was going slowly as he was going uphill and there was no more speed in the truck.

Legislation

1. The parties agreed that the matter was governed by the provisions of MACA in particular sections 3, 3A, 7A to 7E. The defendant also drew the Court's attention to the objects of the Act. Section 3 "Motor vehicle accident" means an incident or accident involving the use or operation of a motor vehicle that causes the death of or injury to a person where 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 3A General restrictions on application of Act (1) 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. (2) This Act (including any third-party policy under this Act) does not apply in respect of an injury that arises gradually from a series of incidents. Section 7A Definition of "blameless motor accident" In this Division: "blameless motor accident" means a motor accident not caused by the fault of the owner or driver of any motor vehicle involved in the accident in the use or operation of the vehicle and not caused by the fault of any other person. 7B Liability for damages in case of blameless motor accident (1) The death of or injury to a person that results from a blameless motor accident involving a motor vehicle that has motor accident insurance cover for the accident is, for the purposes of and in connection with any claim for damages in respect of the death orinjury, deemed to have been caused by the fault of the owner or driver of the motor vehicle in the use or operation of the vehicle. (2) If the blameless motor accident involved more than one motor vehicle that has motor accident insurance cover for the accident, the death or injury is deemed to have been caused by the fault of the owner or driver of each of those motor vehicles in the use or operation of the vehicle. 7C Presumption that motor accident is blameless In proceedings on a claim for damages in respect of the death of or injury to a person resulting from a motor accident, an averment by the plaintiff that the motor accident was a blameless motor accident is evidence of that fact in the absence of evidence to the contrary. 7D Accident must occur in New South Wales after commencement This Division applies only in respect of motor accidents that occur in the State after the commencement of this Division. 7E No coverage for driver who caused accident (1) There is no entitlement to recover damages under this Division in respect of the death of or injury to the driver of a motor vehicle if the motor accident concerned was caused by an act or omission of that driver. (2) The death of or injury to the driver is taken to have been caused by an act or omission of the driver for the purposes of subsection (1) even if: (a) the act or omission does not constitute fault by the driver in the use or operation of the vehicle, or (b) the act or omission was involuntary, or (c) the act or omission was not the sole or primary cause of the death or injury, or (d) the act or omission would have caused the death or injury but for the occurrence of a supervening act or omission of another person or some other supervening event.

Submissions

1. The plaintiff provided to court written submissions dated 6 February 2015 which were supported by oral submissions. The defendant relied on written submissions dated the 12 February 2015 and also on oral submissions.

Fact finding

1. The plaintiff's written submissions suggest that the evidence establishes that the plaintiff was driving his truck up Mount Ousley Road at between 20 to 35 km an hour in the curb side lane of three lanes. Approximately 100 m west of the intersection with Mount Pleasant Road a tree broke away from its root system and fell towards the roadway. After contact with powerlines the falling tree hit and crushed the cabin of the plaintiff's truck. The truck proceeded a short distance before coming to a halt and there was no suggestion that the tree fell as a consequence of fault on the part of any person.
2. In its written submissions the defendant conceded there was a collision between the vehicle and a fallen tree and that following the collision the plaintiff's vehicle continued in a northerly direction for some distance in lane two or three until it came to a halt and that the plaintiff alleged injuries.
3. In oral submissions the plaintiff claimed the evidence although modest was sufficient to establish that the tree fell on the truck. It was noted that it was not suggested to the plaintiff in cross-examination that the tree was on road and that he drove into it.
4. On behalf of the defendant it was suggested that little weight could be put on the police evidence and that the damage did not suggest a compressive force on the cabin roof and that the damage may be consistent with lateral force. It was suggested that the tree had fallen and could have had a huge canopy which came to the level of the windscreen and the truck "took out that section." It was conceded that there was an interaction between the vehicle and the tree and the plaintiff suffered injury as a consequence.
5. In submissions in reply the plaintiff submitted that the defendant's suggestion that the damage could have been caused by the canopy of a tree lying on the ground was "fanciful." Further it was submitted that even if the tree had fallen it must have been so close in time to when the plaintiff's vehicle collided with it that there could be no blame on the part of the plaintiff. It was also submitted that the plaintiff "gets" the benefit of section 7C of MACA. With respect to that suggestion the defendant submitted that the defendant was not required to call any evidence and in all the circumstances the evidence called by the plaintiff was insufficient.

Consideration and finding of facts

1. The evidence on liability is sparse. There was no challenge to the plaintiff's credit and I accept without reservation his evidence that he was driving in the curb side lane at a modest speed and that his last recollection prior to the accident was that there was nothing on the roadway in front of him which presented a hazard.
2. The SITREP uses the words 'falling tree' but the weight of this is somewhat reduced by the question answered by the plaintiff in the notebook entry which used the word 'fallen'. The SITREP confirms that at the time of the collision there were heavy winds and those winds had caused the tree to break away from its root system and come to rest across all three lanes in both directions.
3. The senior constable who prepared the report was of the opinion that the impact with the tree completely crushed the cabin of the truck trapping the driver inside. This impression is confirmed by looking at the DVD which shows that the driver space within the cabin has been invaded by the roof.
4. The photos of the tree appear to be taken after it had been chopped up and removed from the road surface. It was obviously a very large tree as it blocked all six lanes of the highway. Had such a tree fallen before the plaintiff's vehicle arrived at the site of the collision it is difficult to conceive how the plaintiff would have failed to notice it. I accept, however, that the plaintiff's memory of the event is affected by the event itself and his injuries.
5. The SITREP was tendered without objection and there was no requirement that the senior constable who prepared it, nor the Inspector who vetted it, attend for cross-examination. In those circumstances I accept the description of the accident as contained in the SITREP and the evidence in the footage and find that the impact damage to the truck is consistent with and was caused by the tree falling onto the cabin rather than the truck running into the tree.

Is it a Blameless Accident?

1. Both the plaintiff's and the defendant's submissions make reference to matters relevant to the interpretation of the provisions before turning to the specific questions that require determination.
2. The plaintiff's submissions suggest that the context for the introduction of the provisions was the accident in which Sophie Delezio was injured by a driver who claimed to have had an epileptic fit. It was noted that although these provisions were introduced some time ago there have been very few blameless accidents.
3. Reference is made to the second reading speech made by the minister on 9 March 2006 at 21430, and it is submitted that only drivers who cause motor accidents are excluded from the provisions.
4. The submissions then review the relevant authorities particularly the judgment of Tobias AJA in Axiak v Ingram [2012] NSWCA 311 at paragraphs 25 and 62. It was noted that an application for special leave was dismissed by the High Court.
5. Reliance was also placed on the decision of Hoeben J in Nettleton v Rondeau [2014] NSWSC 903, particularly paragraph 85. It was noted that there has been no judicial consideration of the application of section 7E and the only consideration of 7C is that of Hoeben J referred to above.
6. Mr Stone conceded that the words used in the second reading speech differ slightly from the words enacted but submitted that even on the words in the second reading speech the plaintiff in this case would be successful.
7. It was claimed that the "mischief" the amendments sought to address was the social welfare of innocent victims who could not establish fault on the part of the driver or owner and the purpose of 7E was to prevent drivers who cause accidents from being able to claim under the system.
8. The defendant's submissions, after setting out the provisions and objects of the Act, assert that the plaintiff in this case is precluded from recovering because he was a driver and his act of driving was sufficient to attract the specific exclusion in s 7E as it is clear that Parliament never intended to cover drivers in single vehicle accidents.
9. The defendant also referred to the decision of Tobias AJA in Axiak particularly his Honour's comments that "The primary purpose of this bill… is to extend the scope of the New South Wales motor accidents scheme… to provide CTP scheme entitlements to people injured in blameless accidents." And "the one exception is that the driver of the motor vehicle causing the accident will not be entitled to make a claim under these provisions." ([25] and [34])
10. Reference was also made to paragraphs 58, 59, 62 and 66. It was submitted that his Honour's reasoning when applied to the present case means that the plaintiff as the driver cannot recover as the motor vehicle collided with an inanimate object.
11. The submissions then review extensively not only the second reading speech but other speeches made at the time the amending Act was passed and the trend of cases since MACA was passed. It was said that the High Court in Allianz Australia Insurance Limited v GSF Australia Ltd [2005] HCA 26 has emphasised the importance of the objects of the legislation and Parliament's intention to require a close causal connection between the use of a motor vehicle and the injury.
12. It was submitted that in accordance with authority from the High Court the scope of coverage of the Act and the provisions of Chapter 1 Part 1.2 are to be interpreted narrowly.

Consideration

1. While I accept the objects of the Act include a desire to restrict claims and keep the costs of insurance down, the intention of the present provisions is to extend the coverage of the Act into areas not previously covered by any CTP scheme.
2. I also accept the High Court in the past has declared it is appropriate to narrowly construe the definition of motor accident. Those decisions related to earlier versions of the Act, some of which were differently worded and none of which involved any concept of a blameless accident. Special leave was refused in Axiak.
3. During the course of oral submissions I posed a number of hypotheticals to both Mr Stone and Mr Harben. Neither counsel, particularly Mr Harben, thought it appropriate that I engage in that intellectual exercise and urged me to decide only the matter before me.
4. The High Court summarised basic principles with respect to statutory construction in Certain Lloyd's Underwriters v Cross (2012) HCA 56, (2012) 248 CLR 378 at [23] to [26]. The task must begin with the consideration of the text as the language actually employed in the text of the legislation is the surest guide to legislative intention. Matters of context can be of assistance in deciding the legal meaning of a relevant provision, the purpose of a particular statute or provision may be relevant, as may inferences from the text and structure of the act, but: "Determination of a statutory purpose neither permits nor requires some search for what those who promoted or passed the legislation may have had in mind when it was enacted. It is important in this respect, as others, to recognise that to speak of legislative intention is to use a metaphor. Use of that metaphor is not to mislead. The duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended than to have."
5. Placing the provisions in context is particularly difficult in this Act as the provisions involve a departure from the rest of the Act in that they operate outside concepts of fault and establish a partial no-fault scheme or, more accurately, a deemed-fault scheme. This grafting process makes the general objects of the Act of little assistance in interpreting the provisions. It is not appropriate to simply assume that parliament intended the provision to only apply if a third party is involved. The establishment of the Life Time Care Support Scheme, referred to in the second reading speech indicates that coverage funded by green-slip premiums is no longer restricted to injuries caused by third parties.
6. It seems to me a number of anomalies arise regardless of whether the plaintiff's submissions or the defendant's submissions are accepted. It is clear that the provisions were meant to extend the coverage of the Act and that being the driver of a motor vehicle was not of itself intended to prevent an injured person from recovering damages. The effect of an accident involving a single vehicle has not previously been considered by any higher court and is not referred to in the second reading speech.
7. I therefore propose to consider the questions posed by the parties with reference to the facts I have found, giving the words of the statute their natural meaning. (Should the outcome not accord with the actual intention of parliament then the words of the provision may be amended.)

Interpretation of provisions

1. The plaintiff in his written submissions suggests that the facts give rise to 3 questions:
2. Has there been a motor vehicle accident?
3. If so, is it a blameless accident?
4. Is the plaintiff excluded from recovery under the blameless accident provisions by operation of s 7E in relation to drivers?
5. The defendant, in written submissions suggests there are four questions. The first being whether the plaintiff must "pass through the gateway to MACA found in section 3A" The second is the same as the first question posed by the plaintiff. The third is similar to the second question posed by the plaintiff although it is phrased with the facts of this case in mind, that is, can a driver of a motor vehicle who is "the sole person involved in a single vehicle accident involving an inanimate object" recover under the provisions. The fourth question posed by the defendant correlates broadly with plaintiff's third question.

Do blameless accidents have to pass through the gateway to MACA found in section 3A?

1. The defendant submits that the answer is yes and that the plaintiff is unable to do so in the present case.
2. The plaintiff's position is that s3A clearly relates only to motor vehicle accidents where fault is a relevant element.
3. Both parties agreed that the provisions of the Civil Liability Act 2002 (NSW) which relate to breach of duty and causation are not relevant as the provisions operate so as to deem a person at fault.
4. I accept the plaintiff's submissions that s 3A of MACA is not relevant to claims which potentially come within the blameless accident provisions.
5. The section, to my mind, clearly applies only when the death or injury to a person is caused by the "fault" of the owner or driver of a motor vehicle and thus not to blameless accidents.

Has there been a motor vehicle accident?

1. The plaintiff submits that extracting extraneous verbage from the definition in section 3 leaves the following: "Motor accident means an incident or accident involving the use or operation of a motor vehicle that causes...injury to a person where the...injury is a result of and is caused...during: a. The driving of the vehicle, or b. A collision...with the vehicle."
2. It is said that there is no reference to fault in the definition and the incident here occurred during the use and operation of a motor vehicle and resulted in the plaintiff suffering an injury as a result of, and caused during, a collision by the tree with the vehicle. Thus the definition is satisfied.
3. In oral submissions it was claimed that a finding that the facts in this case did not amount to a motor accident would not just disentitle the plaintiff but would disentitle any hypothetical passenger or pedestrian or other vehicle the plaintiff might run into as a consequence of the event.
4. The defendant in written and oral submissions maintained that the event was not a motor accident as the use of the motor vehicle only provided the opportunity for the occurrence of the accident. The defendant emphasised that the section requires the injury to be a result of and caused during the driving or a collision and thus if the driving and/or use and operation was "the mere occasion of the injury" this is not sufficient to satisfy the requisite definition and Parliament never intended a driver such as the plaintiff to be covered by the provisions.
5. On the facts as I have found them the plaintiff's injury was a result of and was caused during a collision between the tree and the vehicle. This collision damaged both the vehicle in which the plaintiff was an occupant and the plaintiff himself. The incident also involved the use or operation of a motor vehicle. The plaintiff was using and operating the vehicle, he was driving from one place to another along a public road. The plaintiff was injured as a result of a collision with the vehicle and that injury was caused during the driving of that vehicle. There is no requirement in the words of the act that the injury be caused by the driving. The fact that a pedestrian walking along the road and being hit by the falling tree would be outside coverage of the act is an anomaly, perhaps one of many. The plaintiff in this case was in a motor vehicle which was involved in an accident. Thus I accept the plaintiff's submissions that what occurred was a motor vehicle accident within the scope of the definition in section 3.

Has there been a Blameless Motor Accident?

1. In written submissions the plaintiff utilised the approach adopted by Tobias AJA in Axiak and claimed that section 7A should be read as: "Blameless motor accident means a ...accident involving the use...of a motor vehicle that causes...injury to a person where the...injury is a result of and is caused during the driving of the motor vehicle and/or a collision [but] is not caused by the negligence or any other tort of the owner of [the] vehicle involved in the accident or the negligence or any other tort of any other person."
2. It was submitted the injury was a result of and caused during the driving but was not caused by any negligence on behalf of the owner or driver nor any negligence or tort of any other person. It was suggested that the evidentiary onus shifts to the defendant pursuant to section 7C.
3. The defendant submitted that the blameless accident provisions were never meant to be a 'no fault' scheme which would cover someone in the plaintiff's position, that is, a driver in a single vehicle accident. In short, 'a person' is not 'the driver' and thus 'a person injured' cannot be the driver, particularly in the circumstance where there is a motor vehicle and an inanimate object.
4. Both in pleadings and in submissions the defendant argued that the provisions were not meant to catch the driver of a motor vehicle which collided with an inanimate object. It was pointed out that in the present case the plaintiff could name the owner as the defendant because of statutory agency, but if he had been both the owner and the driver there would be no available defendant and that circumstance made it clear that drivers were not meant to be covered. The UCPR Part 6 rule 6.4 provides: "(1) Proceedings of the following kinds must be commenced by summons: (a) proceedings in which there is no defendant." Further, there is provision within MACA for joining insurance companies directly as a defendant. I therefore do not accept that the possible absence of a named defendant would prevent an owner/driver from bringing proceedings and thus that possibility does not impact on the process of statutory interpretation being conducted in this case.
5. The construction suggested by the defendant would result in section 7E having no work to do. If Parliament intended no driver of a motor vehicle to come within these provisions it could simply have enacted a provision that provided that no driver of a motor vehicle can recover under these provisions. I accept the plaintiff's submission that as there is no negligence or any other tort on behalf of either the owner or the driver of this vehicle, the event comes within the definition of 'blameless motor accident.'

Is the plaintiff excluded by section 7E?

1. The plaintiff submitted that as there was no act or omission on the part of the plaintiff that was relevantly causative of the accident even under the expanded definition of causation contained in section 7E(2). It was submitted that the question can be reduced to two separate considerations: 1. Has there been an act or omission identified on behalf of the driver? 2. Was that act or omission causative of the accident adopting the expanded definition of "caused" in section 7E(2)?
2. It was submitted that there was no action on behalf of the driver which was relevantly causative of the accident.
3. On behalf of the defendant it was submitted that it was the plaintiff's act of driving which "attracts the specific exclusion in 7E and it is clear there was no intention to cover the driver in a single vehicle accident."
4. On the facts as I have found them the plaintiff did not cause this accident. His driving on the road was no more than a background fact which explains no more than why he was in a position where he could be struck by a tree. Thus the driving of the plaintiff was nothing more than "the mere occasion of the injury."
5. In oral submissions it was emphasised that the section must be read in the context of the Part and that in circumstances such as the present case the plaintiff, as the driver, is deemed to be the person at fault and to have caused the accident.
6. Looking at the words of the section and bearing in mind the words used in the second reading speech I find that even under the extended definition of causation in section 7E there was no act or omission on behalf of the plaintiff, either voluntary or involuntary, which can be said to have caused the accident. I do not accept that the words mean that drivers in single vehicle accidents are deemed to have caused that accident.

Conclusion

1. I find that standing back and looking at the relevant provisions and the facts the accident in which the plaintiff was involved should properly be categorised as a blameless accident and he is not a driver who caused an accident.

Orders

1. Verdict, for plaintiff, damages to be assessed.
2. The defendant is to pay the plaintiff's costs on the ordinary basis unless otherwise ordered.
3. The Exhibits are to be retained by the Registry until conclusion of the hearing on quantum.

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: 10 June 2015