Meaning of " collision "
26 Senior counsel for the claimant submitted that the facts as pleaded in the Statement of Claim fitted precisely within the criteria catalogued by McHugh J in Allianz (with the appropriate changes being made to reflect the requirements of sub-para (a)(ii) as compared to sub-para (a)(iv) which was in issue in Allianz). Thus, it was said:
(a) the claimant was alleged to be at fault in failing to secure the open door (the claimant accepted responsibility for the acts of its servant or agent in this regard);
(b) the fault of the owner was alleged to be in the use or operation of the vehicle (this was also conceded);
(c) the injury was alleged to be caused by the fault of the owner through its servant or agent in the use of the vehicle;
(d) the injury was alleged to be as a result of a collision with the vehicle; and
(e) the injury was alleged to be caused during a collision with the vehicle.
27 For myself, I do not find this catalogue of criteria to be helpful in this case. In the first place it was crafted by his Honour in the process of determining whether sub-para (a)(iv) had been satisfied. Sub-paragraph (a)(iv) raises different considerations to those under sub-paras (a)(i)-(a)(iii). But, in any event, it begs the question whether the first opponent's injury was a result of and was caused during a collision with the truck.
28 Senior counsel for the claimant also referred the Court to the dictionary definition of "collision", submitting that the circumstances of the injury suffered by the first opponent fitted within those definitions. The dictionary definitions are:
Oxford Dictionary (1989, 2nd ed): "the action of colliding or forcibly striking or dashing together; violent encounter of a moving body with another…"
Macquarie Dictionary (2005) online ed): "the act of colliding; a coming violently into contact; crash."
29 I accept that the incident in which the first opponent suffered her injury falls within these dictionary definitions. However, a dictionary definition is not determinative of the meaning of a statutory provision. Rather, a statutory provision has to be construed so as to give effect to the objects and purpose of the statute: see Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation; Pfeiffer v Stevens. Although the starting point is the language used, it is the meaning of the word or phrase in the context of the statute as a whole construed so as to give effect to the scope, object and purpose of the statute, which must be determined: see Project Blue Sky Inc. v Australian Broadcasting Authority (1998) 194 CLR 355, esp at 381; [1998] HCA 28. The mere fact that the accident might fall within one of the dictionary definitions does not necessarily provide that answer.
30 In Townsville Trade Waste Pty Ltd the Queensland Court of Appeal held that an incident that might fall within the dictionary definition of the word "collision" did not necessarily fall within s.5(1) of the Motor Accident Insurance Act (Qld) 1994 (the Queensland Act). Sub-paragraphs (a)(i), (a)(ii) and (a)(iii) of the Queensland Act are in the same terms as the MAC Act (sub-paragraph (a)(iv) of the Queensland Act refers to a defect in the vehicle causing loss of control of the vehicle while it is being driven and is thus in different terms to sub-para (a)(iv) of the MAC Act). In that case the plaintiff who was standing on the chassis of a truck undertaking repair work, was killed when an elevated rear section of the truck fell on him due to leakage of fluid from the hydraulic system. Davies JA commented at [21] that although the accident fell within the dictionary definition of "collision" it would not ordinarily be described as a collision with a motor vehicle.
31 His Honour considered that a more natural description of the accident was that the first opponent was crushed by the falling body of the truck. It was necessary therefore to determine whether the phrase "collision" had a different meaning in its statutory context then normal parlance would suggest. Davies JA considered the critical question to be whether the sub-paragraph was restricted in its operation to an injury resulting from a collision with the vehicle in its capacity or function as a motor vehicle. The trial judge had found that that was the proper construction of the provision. Davies JA said at [23]:
"There are at least two reasons why … that conclusion is correct. The first is that it excludes from the operation of subpar. (ii) an event which would not, in ordinary language, be thought of as a collision with a motor vehicle. The second is that it restricts the operation of subpar. (ii) to a category consistent with the restricted operation of the other subparagraphs. The subparagraphs as a whole then provide a consistent and coherent basis for application of the section."
32 His Honour also considered that this construction was consistent with the purpose of the legislation which was directed to accidents involving a more direct use of a vehicle than accidents occurring as a result of some incidental use. His Honour considered that sub-para (a)(ii) of the Queensland Act, "[was] not restricted in its operation to an injury resulting from a collision with a moving vehicle" (at [22]).
33 White J considered that the question whether the facts constituted a "collision … with the motor vehicle" within the meaning of the Queensland Act was a difficult one. Her Honour observed that cases might or might not fall within the legislation with only a slight variation of facts. It had been argued in that case that the provision only applied in the case of a collision with the whole vehicle. In considering that argument, her Honour (at [35]) asked whether "focussing on the wholeness of the motor vehicle [would] exclude a situation where a car door of a stationary vehicle is opened carelessly so that it strikes and injures a stationary pedestrian or a moving bicyclist". She considered that the latter example may easily be described as a "collision with" a motor vehicle while the former did not readily do so, but that opinions may well differ on that question. In the end result her Honour considered that to describe what happened as a "collision with" a motor vehicle was a significant departure from the meaning of the expression in the Queensland Act. Although White J did not make any express comment as to whether sub-para (a)(ii) was restricted to a moving vehicle, it is apparent from the examples she considered that she did not consider the sub-paragraph to be so limited.
34 McMurdo P (dissenting) considered that the case fell within the dictionary definition and that, as a matter of construction, the accident fell within the statutory provision.
35 In AMP General Insurance Ltd v Kull [2005] NSWCA 442 this Court considered the operation of sub-para (a)(ii) of the definition of "injury" in the MAC Act in somewhat unusual circumstances. The respondent had placed his hand on the fan belt of a Land Cruiser in order to effect an adjustment. Without warning, the owner of the Land Cruiser initiated the ignition, causing the fan belt to move, with the result that the respondent's hand became jammed in the fan belt mechanism. Hodgson JA held (at [52]) that it would be a "significant departure from the natural meaning of the phrase" to find that the injury "was the result of and caused during a collision with the vehicle". His Honour added:
" The contact of a pedestrian with a stationary vehicle could possibly fall within that expression; and such a collision could be with an appendage to the vehicle, such as a wing mirror. But there at least has to be injury caused by an impact that can fairly be described as a collision with the vehicle, that is, an impact due to the mutual motion of whatever collides with the vehicle and the vehicle itself. A hand being drawn into a fan belt mechanism does not in my opinion amount to a collision of the hand, or the person whose hand it is, with the vehicle" (emphasis added)
36 The claimant relied upon this passage (particularly the emphasised portion), submitting that the first opponent's injury was a result of, and caused by, her coming into contact with the door of the truck and that there was thus a collision with the truck.
37 The additional comments of Hodgson JA were, of course, obiter. As with all obiter remarks the context in which they are made is relevant to understanding their import. His Honour, in the course of determining whether the particular facts with which he was dealing fell within the provisions of the MAC Act, referred to other circumstances that he considered might do so, in order to test the direct proposition with which he was concerned. That is legitimate and often useful in testing a proposition within the particular case. However, care must be taken especially when dealing with legislation of the type here, where particular facts may sit precariously on either side of the definition, in seeking to bring a case within an example or category referred to in other cases. As White J observed in Townsville Trade Waste Pty Ltd at [35], a slight change in the facts could be the difference in a particular injury either falling within the definition or not. Each case must be considered having regard to the particular circumstances of the injury. Mahoney P recognised this in Balfour Beatty Power Constructions (Australia) Pty Ltd v Government Insurance Office of New South Wales (1996) 24 MVR 162, a case decided under the 1988 Act, when he said: "application of [the Act] to a set of facts does not … lead inevitably to one conclusion rather than another".
38 For myself, I have not found particular assistance from the decided cases to which the Court was referred. They were all cases dealing with their own specific facts. Thus it is necessary and more satisfactory to return to the MAC Act and the definition of injury. The first part of the definition of "injury" in s.3 requires that the injury was caused by the fault of the owner or driver of the vehicle in its use or operation. I have already discussed this above. The second part of the definition provides that an injury only comes within the provision "if the injury is a result of and is caused during" one of four specified circumstances. As the High Court pointed out in Allianz the second part of the definition involves both a temporal connection between an injury and the relevant circumstance specified in sub-paras (a)(i)-(a)(iv), as well as a proximate cause. There is no issue in this case about the former. The question is whether the circumstances of this accident were the result of a "collision with" the truck. That brings me directly to the submissions advanced by the second opponent as to the proper construction of that phrase.
39 Senior counsel for the second opponent submitted that sub-para (a)(ii) is directed to the circumstance where the person who sustains the injury collided with a vehicle in the sense that the person was the moving participant in the dynamics of the accident. He submitted that this was clearly the intended scope of sub-para (a)(ii), as was apparent from the structure of the other sub-paragraphs of the definition. He submitted that leaving aside sub-para (a)(iv), the circumstance where the vehicle is the moving force is covered by sub-paras (a)(i) and (a)(iii). Thus, in the case of sub-para (a)(i), the injury had to be the result of and be caused during the driving of a vehicle. Although I have eschewed the use of examples in explaining the application of the provision, one that is clear in relation to sub-para (a)(i) is where a vehicle travels through a red light and hits a pedestrian on a pedestrian crossing. In the case of sub-para (a)(iii) the vehicle is again, as a matter of the plain language of the paragraph, the moving object, that is, the paragraph applies where the vehicle runs out of control. In that case, liability in the owner or driver is controlled by the opening provisions of the definition. In each of sub-paras (a)(i) and (a)(iii) the person injured may or may not be moving, but that is not a relevant matter. The focus in those two sub-paragraphs is upon injury resulting from and being caused during the motion of the vehicle in circumstances where there is fault in the owner or driver in the use and operation of the vehicle.
40 It was then submitted that the logical construction of sub-para (a)(ii) was that it applied to the circumstance where the person who sustains the injury collides with the vehicle. In other words, the moving entity is the person involved in the collision. That could occur when the injured person was in a vehicle, either as driver or passenger, when the car collided with another vehicle, or when the injured person was riding a motor bike or a bicycle and collided with a vehicle, or when the injured person was a pedestrian and came into contact with a vehicle. Liability for the injury by the owner or driver of the other vehicle would only arise where the first part of the definition of injury was satisfied, namely, where the injury was caused by the fault of the owner or driver of the other vehicle.
41 Although this approach appears to satisfactorily answer the question in this case and provides at least the starting point for the proper construction of the definition of "injury", it fails to draw the necessary connection between the causal requirement specified in the definition and the collision. In my opinion, that connection is fundamental to the construction of sub-para (a)(ii). The problem with the approach as articulated by the second opponent can be demonstrated by asking whether there would be a "collision … with" the truck within the meaning of the definition, if the facts here were reversed, so that the first opponent walked into the door of the truck as it was blown by the wind.
42 On the second opponent's approach, such an incident would arguably fall within the definition; and yet there is no rational basis why that incident would and the actual incident here would not. As I have said, I consider that the deficiency with the postulated construction lay in the failure to connect the specification in sub-para (a)(ii), that is, that there be a "collision … with" a vehicle, with the causal requirement in the second part of the definition. As the High Court pointed out in Allianz, the causal requirement is a proximate one: see especially in the joint judgment at [101]. A reference to the proximate cause of loss or injury is a well known concept in insurance law: see Lasermax Engineering Pty Ltd v QBE Insurance (Australia) Ltd [2005] NSWCA 66 per McColl JA at [39]. There are many ways of expressing the notion of "proximate cause" but in essence it means the effective or direct cause: see Australian Casualty Company Ltd v Federico (1986) 160 CLR 513 at 521; [1986] HCA 32; Government Insurance Office (NSW) v R J Green & Lloyd Pty Ltd (1966) 114 CLR 437 at 447; [1966] HCA 6; Wayne Tank & Pump Co Ltd v Employers Liability Assurance Corporation Ltd [1974] QB 57 at 66; Lasermax Engineering Pty Ltd v QBE Insurance (Australia) Ltd.
43 When it is realised that the legislature is concerned with the effective cause of an injury following a "collision … with" a motor vehicle it is immediately apparent that not only the incident alleged here, but also the reverse factual circumstance I have postulated, do not fall within the definition. The direct, effective or proximate cause in each case was the casual negligence of an employee in the course of carrying out an employment task.
44 This construction allows each of the sub-paragraphs to operate according to their ordinary and natural meaning. It gives full operation to the causal and temporal application of the two parts of the definition to which I have already referred. It avoids the inclusion of the loading and unloading cases that the Attorney-General said in the Second Reading Speech were not to be covered by the definition. It allows for the general law of negligence to operate in circumstances where an accident occurs which, although involving the use or operation of a motor vehicle, is not an accident that occurs on the roads or places where vehicles are used as a normal part of their driving such as driveways and car parks. I would only add that on this construction, it is not necessary that "the motor vehicle" be in motion: cf Allianz per Callinan J at [131] (referred to at [24] above).
45 In this case, although the vehicle was in a place that was used by vehicles for parking, the injury alleged by the first opponent was, as I have said, a direct result of a casual act of negligence not associated with the act of driving (sub-para (a)(i)) or with the truck running out of control (sub-para (a)(iii)). On the facts as pleaded (and partly as appears in correspondence that was in evidence) the door had been opened as part of an unloading operation. The negligence alleged therefore had occurred as part of an industrial operation such that the injury was not the result of nor caused during a collision with a vehicle. It follows, in my opinion, the injury sustained by the first opponent was not an injury for the purposes of the MAC Act and his Honour's conclusion in that regard was correct.
46 In those circumstances, subject to the considerations I raise below, I would grant leave to appeal but dismiss the appeal.
47 The claimant's Notice of Motion sought an order that:
"1. The plaintiff's Ordinary Statement of Claim be dismissed or alternatively struck out."
48 An application to strike out a pleading is brought pursuant to Pt.9 of the District Court Rules, which provides that the whole or part of a pleading may be struck out where, inter alia, it discloses no reasonable cause of action: r.17(i)(a); or is otherwise an abuse of process of the Court: r.17(i)(c). An application to dismiss proceedings is brought under Pt. 11A Div. 2, where no reasonable cause of action is disclosed: r.3(1)(a); or the proceedings are an abuse of the process of the Court: r.3(1)(c). However, in the opening paragraph of his judgment, the trial judge referred to Pt.26 r.5AA which provides that the Court may make orders for the separate decision of any question of law, or partly of fact and partly of law. This was a curious course if taken, given the relief sought in the Notice of Motion.
49 That raises the question of the basis under which the trial judge proceeded. The manner in which the Court dealt with the proceedings is important for at least the following three reasons. The first is procedural. If the application had been made for summary dismissal under either Pt.9 or Pt.11A, then the principles in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69 would apply. Initially, the opponents had taken a General Steel point in their submissions to the Court. That argument was abandoned.
50 The second relates to whether the trial judge in fact determined a separate question. When a decision is made to determine a separate question, the separate question needs to be clearly stated. The determination of that question may require the Court to proceed upon agreed facts. The question must also be expressly answered. The decision of a separate question determines that question for the purposes of the proceedings, subject only to an appeal from the determination. Any appeal, if brought before the suit proceeds to a final determination, is by leave, being in respect of an interlocutory order: Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 at 360; contra Damjanovic v Sharpe Hume & Co (Services) Pty Ltd [2001] NSWCA 130.
51 Although the trial judge made reference to Pt.26 r.5AA in his reasons, there was no formulation of a separate question by his Honour. Rather, after referring to the claimant's application to have the Statement of Claim dismissed or struck out and to have the matter determined under the Pt.25 r.5AA his Honour merely said:
"In effect, [the claimant] contends that the injury described, and its happenings as set forth in the [Statement of Claim], bring the matter to be determined under the provisions of the [MAC Act]"
52 His Honour then proceeded to consider the matter on the allegations in the Statement of Claim.
53 His Honour concluded:
"…I am of the view that the accident described in the [Statement of Claim] is not a collision within the meaning of the [MAC Act]".
54 Senior Counsel for the second opponent submitted that it appeared from those two passages that his Honour in fact determined a separate question. As I understand the submissions put on behalf of the first opponent, the first opponent also accepted that that was how his Honour proceeded, although they also seemed to submit that the matter should be determined by this Court on the narrower basis of whether the Statement of Claim should be dismissed or struck out. Counsel for the claimant submitted that there was no issue of fact to be decided on the appeal and that the issue was whether on the facts as pleaded, there had been an "injury" within the meaning of the MAC Act.
55 Senior counsel for the claimant commented that it is not uncommon for courts to consider "by Notice of Motion, actions for dismissal arising from the provisions of the [MAC Act]", and that the opponents had been content for the interpretation issue to be dealt with "as a separate issue to the trial".
56 It is clearly unsatisfactory for the matter to be in such a state of uncertainty. The uncertainty is compounded by the alternate finding made by his Honour that he was not satisfied on the evidence that the claimant had established "fault of the owner or driver … in the use or operation of the vehicle". Such a finding was more likely to have been made within the context of an application for the Statement of Claim to be dismissed or struck out.
57 The claimant sought to obviate any difficulty it might have in relation to the alternate finding by conceding for the purposes of the appeal that there had been relevant "fault". This was undoubtedly a tactical consideration so as to quarantine, in the claimant's favour, one of the prescriptive requirements of the definition of "injury". However, that approach would seem to indicate that the claimant considered that the matter was dealt with under Pts. 9 or 11A and not by way of the determination of a separate question.