Administrative Law - Appeals from administrative authorities - Statutory appeals from administrative authorities to courts - Appeals from particular authorities - Tasmania - Motor Accidents Insurance Board - Exclusion of liability - Meaning of taking part in practice for a motor vehicle race.

Motor Accidents (Liabilities and Compensation) Act 1973 (Tas).

Judgment Number: [2004] TASSC 102

NORMAN RONALD HENRY v MOTOR ACCIDENTS INSURANCE BOARD

1 The appellant appeals against a determination of the Motor Accidents Compensation Tribunal ("the Tribunal") upholding a challenge by the Motor Accidents Insurance Board ("the Board") to its liability to pay the appellant scheduled benefits in respect of injuries he suffered in a motor vehicle accident on 2 February 2002. Liability was denied on the basis that the appellant's injuries resulted from an accident in a motor vehicle race. As to this denial, the following provisions of the Motor Accidents (Liabilities and Compensation) Act 1973 ("the Act") are relevant:

"24 - (1) Notwithstanding section 23, scheduled benefits are not payable in respect of the personal injury to a person in any of the following cases:

(d) Where the personal injury results from a motor accident occurring in a motor vehicle race (not being a motor vehicle race that takes place on a beach) in which that person was taking part."

"2 - (1) In this Act unless the contrary intention appears -

'motor vehicle race' has the same meaning as it has for the purposes of Division III of Part VI of the Police Offences Act 1935.

"(3) For the purposes of this Act a person shall be regarded as taking part in the motor vehicle race while -

(a) he is engaged in conducting, or assisting in conducting, the race;

(b) he is in charge of, or in, a motor vehicle competing or taking part in the race; or

(c) he is assisting, or employed to assist, any person regarded as taking part in the race by virtue of paragraph (a) or paragraph (b), in connection with the race or any motor vehicle competing or taking part therein, and any motor vehicle driven by or in charge of any person taking part in a motor vehicle race shall be deemed to be taking part in that race."

2 The Police Offences Act 1935, s47, provides that:

(a) any race or competition in which two or more motor-vehicles compete or take part, whether or not at one and the same time, and in the result of which the actual speed of such motor-vehicles is a determining factor;

(b) any test to which a motor-vehicle is subjected for the purpose of ascertaining, either alone or in conjunction with other matters, its actual speed capabilities; and

(c) the use of any motor-vehicle in any practice at the place where, or over any part of the course on which, any such race, competition, or test is to take place with a view to the participation in that race, competition, or test, of that motor-vehicle or the person so using it."

3 The appeal to this Court is made pursuant to the Act, s28(6), that provides:

"(6) A person aggrieved by a determination made by the Tribunal under subsection (5) may appeal to the Supreme Court which may confirm, vary or rescind the determination."

4 This Court can only exercise its appellate power if satisfied that the Tribunal erred. This is because statutory provisions conferring appellate powers are construed on the basis that, unless there is something to indicate otherwise, the power is to be exercised for the correction of error; Allied Operations Pty Ltd v Australian Industrial Relations Commission and Others [2000] HCA 47; (2000) 203 CLR 194, Gleeson CJ, Gaudron and Hayne JJ, 203 [14] and see also Kirby J, 224 [75].

1 The Tribunal erred in law and/in fact in holding that the Appellant was 'practising' within the meaning of S 24 (i)(d) of the Motor Accidents (Liabilities and Compensation) Act 1973.

2 The Tribunal erred in law and in fact in holding that the Appellant was:

(a) taking part in a motor vehicle race within the meaning of S 24 of the Motor Accidents Liabilities and Compensation Act 1973; and

(b) using a motor vehicle with a view to his participation in the Targa race.

6 The primary evidence in relation to the accident before the Tribunal was a document containing extracts from recorded interviews with the appellant and the passenger in his motor vehicle, Matthew Harding. This evidence was put before the Tribunal by consent. The appellant and Mr Harding did not give oral evidence before the Tribunal.

7 The evidence established that the appellant and Mr Harding had arranged to participate in Targa 2002. The appellant was to drive and Mr Harding was to be his co-driver/navigator. It was common ground between the parties before the Tribunal that Targa 2002 which was to take place in April 2002 is a motor vehicle race within the meaning of that term in the applicable legislation. On 2 February 2002, the appellant and Mr Harding travelled together in a Porsche 944 coupe driven by the appellant from Hobart to the north of the State in order, in the words of Mr Harding to "do reconnaissance for Targa that year". The appellant did not intend to drive the Porsche in Targa. He had an Alfa Romeo that was specially built for the race. Mr Harding had with him a booklet provided by the organisers of Targa, maps and road notes prepared by another navigator. Mr Harding was to check the accuracy of those notes and the stage maps. From Perth the appellant drove towards Devonport using back roads that passed through Longford and Deloraine. I infer that this was in order to travel along sections of roadway designated as Targa stages. About 5 to 10 kilometres from Devonport, they entered a stage that included Buster Road. Their intention had been to turn back after completing this stage. After travelling 1 to 1.5 kilometres into that stage (stages are indicated by road markings), they entered a right hand sweeping bend at a speed of about 80 to 90 kilometres per hour. As they did so, the vehicle slid off the road and collided with a tree. Mr Harding, who was looking at a reconnaissance book at the time, felt the car sliding and glanced up to see the tree just before the collision.

8 The issue in contention before the Tribunal was whether the accident occurred in the course of "the use of any motor vehicle in any practice ... over any part of the course on which, any such race (or) competition ... is to take place with a view to the participation in that ... race (or) competition ... of that motor vehicle or the person so using it."

9 As to the meaning of "practice", the Tribunal was referred to:

* "... the Macquarie dictionary definition of 'practice', which included 'repeated performance or systematic exercise for the purpose of acquiring skill or proficiency, practice makes perfect'. And 'of or pertaining to an attempt which is undertaken merely to develop skill, refresh one's memory etc'."

* "... the Shorter Oxford Dictionary definition of practice, which is 'exercise in any art, handicraft, etc for the purpose of obtaining proficiency'."

* "The Collins English Dictionary and Thesaurus [which] identifies synonyms such as 'go over', 'prepare', 'rehearse', 'train', 'warm up', and 'work out'."

10 In relation to the issue of practice, the Tribunal concluded:

"This matter turns obviously on the definition of 'practice'. The Act is remedial legislation, among other things it provides for the payment of persons of benefits subsequent upon motor vehicle accidents in which they sustain injury. The orthodox view of the approach to be adopted in relation to the interpretation of this type of legislation is to be found in Bull -v- Attorney-General (NSW) [1913] HCA 60; (1913) 17 CLR 370 at 384 where Isaacs J said:

'In the first place, this is a remedial Act, and therefore, if any ambiguity existed, like all such Acts should be construed beneficially. This means, of course, not that the true signification of the provision should be strained or exceeded, but that it should be construed so as to give the fullest relief which the fair meaning of its language will allow.'

However s24 of the Act is a restricting provision. It limits the rights of those persons who otherwise would have been entitled to claim some scheduled benefit. A similar point was considered in Waugh -v- Kippen [1986] HCA 12; (1986) 64 ALR 195 where the court (Gibbs CJ, Mason, Wilson and Dawson JJ) said at 201 that one was to look at the dominant purpose of the legislation under consideration.

Strict construction of a penal statute relevant in the circumstances should not be adopted so as to deprive a worker of the protection the Parliament intended to afford (Statutory Interpretation in Australia 3rd Ed D C Pearce & R S Geddes, p166).

'The judgment in Waugh's case makes the point that the obligation imposed by the Act must be apparent but within that limitation, there is no room for strict construction of a statute the purpose of which is remedial or beneficial'.

It seems to me that the excluding provision s24 needs to be construed in the ordinary meaning of the words used and bearing in mind the overall remedial purpose of the Act.

It seems to me there is no doubt that the act of driving undertaken by the Applicant on this day was done in preparation for ultimately competing in the event. The purpose of the act of driving was to take notice of the course over which the race was ultimately to be driven. It seems to me that these actions cannot be said to be anything other than preparation for the race. I am conscious that there was no attempt, on the evidence before me anyway, to drive at speeds, which would be repeated in race conditions, and there is certainly evidence that the road markings and road signs were being complied with. I think the ordinary meaning of the word 'practice' may normally involve some repetition of actions and an attempt to duplicate race conditions. The fact that Targa officials might consider there was a difference between a reconnaissance and practice is of limited relevance in my view. The question at the end of the day is whether on the facts established before this Tribunal the activities of the Applicant fall within the definition of practice or not.

I think if one were to be looking on from outside and observing the actions of the Applicant and Mr Harding on this day one would come to the conclusion that they were indeed preparing for the Targa event. In that sense in my view they were practising for it. They were carrying out actions and doing things, which were necessary for their ultimate participation in the event. They were rehearsing and preparing for it. In my view those actions fall within the ordinary meaning of the word 'practice'. The applicant is precluded from further Scheduled Benefits by the provisions of S24 (1) (d) of the Act."

11 The applicable legislation is remedial but subject to exceptions, including an exception in relation to motor vehicle races. The law I adopt in relation to the interpretation of the legislation is conveniently encapsulated in the following passage from the joint decision of Lockhart, Gummow and Einfeld JJ in Rose v Secretary, Department of Social Security (1990) 92 ALR 521 at 524:

"We were referred in argument to various principles of construction of statutes including the principle that remedial legislation should be construed beneficially. The Act is a remedial provision in that it gives benefits to persons and thereby remedies Parliament's perceptions of injustice. It calls for no narrow or pedantic construction; but, as mentioned earlier, it contains both enabling and excepting provisions which do not therefore necessarily require beneficial interpretation. It depends on the particular statutory provision and an analysis of its language and purpose. Aids to construction, including the principle of liberal interpretation of remedial provisions, are generally invoked when there is some ambiguity on the fact of the particular statutory provision."

12 When remedial legislation contains an exemption designed to strike a balance between competing interests, a court or tribunal considering the legislation should be careful to keep to the path of the legislation, as a construction which is liberal to one person may be illiberal to others, Commonwealth of Australia v Human Rights and Equal Opportunity Commission and Another (1998) 152 ALR 182 at 189 - 190. This is not such a case. The exemption contained in the Act, s24(1)(d), does not involve a careful balancing exercise. In the circumstances specified, it deprives a person injured in a motor vehicle accident of a remedy that would otherwise have been available. In this situation any ambiguity in the legislation should be construed in favour of the claimant, always keeping in mind that the Acts Interpretation Act 1931, s8A, requires that in the interpretation of a provision of an Act, an interpretation that promotes the purpose or object of the Act is to be preferred to an interpretation that does not promote the purpose or object. In this regard I am guided by the following passage from the decision of McHugh J in Saraswati v R [1991] HCA 21; (1990) 172 CLR 1 at 21:

"With great respect, the approach of his Honour to the construction of s61E(2) was an unduly narrow one which was not in accordance with the approach to statutory construction reflected in the Interpretation Act 1987 (NSW). Section 33 of the Interpretation Act directs a court in interpreting a provision in an Act to give preference to a construction 'that would promote the purpose or object underlying the Act' over a construction 'that would not promote that purpose or object': cf Chugg v Pacific Dunlop Ltd [1990] HCA 41; (1990) 170 CLR 249, at pp 261-262. Moreover, the terms of s34 of that Act, which provides for the use of extrinsic material, make it plain that 'the ordinary meaning conveyed by the text of the provision' is the meaning conveyed by that provision after 'taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule'. Hence, it is always necessary in determining 'the ordinary meaning' of a provision such as s61E(2) to have regard to the purpose of the legislation and the context of the provision as well as the literal meaning of the provision. Sometimes the purpose of the legislation is expressly stated; sometimes it can be discerned only by inference after an examination of the legislation as a whole; and sometimes it can be discerned only by reference to the history of the legislation and the state of the law when it was enacted. It need hardly be said that a particular Act may have many purposes.

In many cases, the grammatical or literal meaning of a statutory provision will give effect to the purpose of the legislation. Consequently, it will constitute the 'ordinary meaning' to be applied. If, however, the literal or grammatical meaning of a provision does not give effect to that purpose, that meaning cannot be regarded as 'the ordinary meaning' and cannot prevail. It must give way to the construction which will promote the underlying purpose or object of an Act: Interpretation Act, s33. In Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297, Mason and Wilson JJ said, at p 321:

'when the judge labels the operation of the statute as "absurd", "extraordinary", "capricious", "irrational" or "obscure" he assigns a ground for concluding that the legislature could not have intended such an operation and that an alternative interpretation must be preferred. But the propriety of departing from the literal interpretation is not confined to situations described by these labels. It extends to any situation in which for good reason the operation of the statute on a literal reading does not conform to the legislative intent as ascertained from the provisions of the statute, including the policy which may be discerned from those provisions'."

13 In the course of his submissions, Mr Read, counsel for the appellant, drew the Court's attention to the Police Offences Act 1935, ss48 and 49. These provisions make it an offence to hold a motor vehicle race without a permit from the Commissioner of Police and provide that no permit shall be of effect unless there is in place in relation to the race a policy of insurance as specified. That policy must be issued by an insurer approved by the Board and must insure any person taking part in the race against liability that may be incurred by that person in respect of death or bodily injury to any person, and liability in relation to certain property damage. There are modest upper limits on the amount of insurance cover required. I have not fully set out these provisions as I do not derive any assistance from them in my interpretation of the applicable legislation. The policy of insurance they require is not one which entitles any claimant to recover no fault benefits of the nature of those claimed by the appellant, that is scheduled benefits. I of course recognise that the effect of the applicable legislation is that a participant in a motor vehicle race or practice session as prescribed, together with certain assistants (the Act, s2(3)) are denied the benefit of any insurance cover under the Act by s14(4)(a), as well as s24(1)(d).

14 Expert evidence was before the Tribunal to the effect that there were many aspects of "practice" as that term is used in the sport of motor vehicle racing that were absent from the activities of the appellant at the time of the accident. The road was not closed. The appellant was driving within the applicable speed limit which had not been lifted, as it would have been if an authorised race was in progress. The vehicle was not being timed. Mr Read submits that "practice" should be given a meaning that pays regard to all the aspects of that term as understood within the sport of motor racing. Insofar as this submission suggests that an activity could not amount to the use of a motor vehicle in practice for a race unless a substantial portion of the matters that might be involved in practising for a race are present, I reject it. That a driver was concentrating on one aspect of the skills necessary for a race may be sufficient. For example, that a driver was focussing on braking alone would not mean that the driver was not practising for a race, just as it could not be said that a golfer who was practising tee shots on one hole of a golf course was not practising to play golf. What is determinative of whether an activity amounts to practising is the ordinary meaning of the term practice. My distillation from the meanings for practice canvassed before the Tribunal is that for present purposes it is to pursue an aspect of an activity for the purposes of developing proficiency in that activity. Can it be said that the appellant was using his motor vehicle on a stage of the Targa course in order to gain proficiency in traversing that part of the course? The Tribunal found that the appellant was driving his vehicle in preparation for ultimately competing in Targa and that the purpose of his driving was to take notice of the course over which the race was to be driven. This finding reflects evidence to the effect that the purpose of the trip was to familiarise Mr Harding with the stage and to refresh the appellant's memory of it. Expert evidence was given to the Tribunal that an important factor in Targa driving is knowledge of the road and how to drive it and that the preparation by both the driver and the co-driver in this context is important to success.

15 Mr Read submits that the purpose of the exclusion contained in the Act, s24(1)(d), is to deny no fault entitlements to persons whose activities are of such a dangerous level as to come within the concept of practising for a motor vehicle race. He puts that the activity of reconnaissance established on the evidence in this case falls well short of an activity of sufficient danger as to amount to practising for a motor vehicle race. I accept that the reason that the Act excludes cover in relation to motor vehicle races and practising for motor vehicle races is that these activities are considered to be dangerous. I also accept that if it was established that a particular course of conduct involved little or no danger or risk, this could bear on the assessment of whether it was a motor vehicle race or practice for a race. Nevertheless, the predominant consideration when making such a determination is the words used in the legislation to describe the course of conduct excluded from liability. Danger is not a specific element of the extended meaning given to a motor vehicle race by encompassing within it practice for a motor vehicle race. For present purposes, the required elements are:

* with a view to that person participating in the race.

The presence or absence of danger is in no way decisive in the determination of what amounts to a motor vehicle race or practice for a race as danger is not a specific element of the meanings given to these phrases. Once it is determined that a person is participating in either of these courses of conduct in the requisite way, liability is excluded and it is no answer to say that at the time injury was suffered the participant in the particular course of conduct was in fact doing something that ordinarily would be considered to be quite safe and not dangerous.

16 The Tribunal's decision that at the time of the accident the appellant was using his motor vehicle in a practice for a motor vehicle race has not been shown to be in error. The first ground of appeal is dismissed.

17 The issue raised by ground of appeal 2(a) is whether at the time of the accident the appellant was "taking part" in a motor vehicle race within the meaning of the Act, s24(1)(d). This issue is disposed of by the Act, s2(3)(b), which provides that "a person shall be regarded as taking part in the motor vehicle race while he is in charge of, or in, a motor vehicle competing or taking part in the race". As the definition of motor vehicle race includes any practice for the race, the appropriate way of reading the Act, s2(3)(b), in this instance, is by substituting "practice" for "race" where appropriate. In result, that provision provides that a person shall be regarded as taking part in the race while he is in charge of, or in, a motor vehicle taking part in the practice. As the appellant was in a motor vehicle taking part in the practice, the appellant himself was taking part in the practice. This means for the purposes of the Act, he was taking part in a motor vehicle race. This ground of appeal must fail.

18 The issue raised by ground 2(b) is whether the appellant was using his vehicle in a practice for Targa "with a view to the participation in that race ... of ... the person so using it" within the meaning of par(c) of the definition of motor vehicle race.

19 The evidence before the Tribunal establishes that the trip was undertaken in order for the appellant and Mr Harding to familiarise themselves with the stage, but that the predominant reason for the trip was to help Mr Harding prepare for the race. He had not competed in Targa before, whilst the appellant had driven over the stage in question up to 20 times.

20 Targa is a team event. The rules governing the race require that each vehicle has a crew of two persons, a driver and a co-driver. A driver alone is not allowed to compete. Obviously enough it was in the appellant's interest to assist Mr Harding gain experience and knowledge that would improve his performance as a member of the crew. As they were a team, anything they did together with a view to improving either of their skills can properly be seen to have been done with a view to the participation of both of them in the race. The evidence established that the vehicle was used by the appellant with a view to his participation in the race. Ground 2(b) is not made out.