Insurance Commission of Western Australia v Container Handlers Pty Ltd [2004] HCA 24; 218 CLR 89; 206 ALR 335; 78 ALJR 821

Insurance Commission of Western Australia v Container Handlers Pty Ltd [2004] HCA 24; 218 CLR 89; 206 ALR 335; 78 ALJR 821 - HCA 2004 case summary — Zoe

[13]

McHUGH J. During the course of transporting a truck on a low loader attached to a prime mover in outback Western Australia, Mr Ashley Sutton suffered a "brutal injury" when, after having stopped to repair the low loader, a jack slipped and caused an axle of the low loader to fall, crushing his left hand against the chassis[1]. The injury was the result of the negligence of Container Handlers Pty Ltd ("Container Handlers"), the owner of the prime mover and low loader, and its employee, Mr Jason Reibel[2]. Mr Reibel was the driver of the prime mover which was hauling the low loader. Mr Sutton and Mr Reibel were carrying out the repair work after Mr Sutton noticed smoke and fumes coming off one of the left rear wheel hubs of the low loader. Mr Sutton said that there was a lot of grease everywhere and that the wheels "were sort of out of shape, so it looked pretty serious."[3] When Mr Sutton told Mr Reibel what he had seen, Mr Reibel said that they would have to take both wheels off the low loader. The injury to Mr Sutton occurred shortly after Mr Reibel and Mr Sutton commenced the repair work.
The issue in this appeal, brought against an order of the Full Court of the Supreme Court of Western Australia, is whether the bodily injury suffered by Mr Sutton was "directly caused by, or by the driving of, [a] motor vehicle" within the meaning of the standard form policy set out in the Schedule to the Motor Vehicle (Third Party Insurance) Act 1943 (WA) ("the Act"). Policies in that form had been issued by the appellant, the Insurance Commission of Western Australia ("the ICWA"), to Container Handlers, the first respondent, in respect of each of the prime mover and low loader[4]. The Full Court held that the policy indemnified Container Handlers in respect of its liability for Mr Sutton's injury[5].
In my opinion, the Full Court erred in finding that liability for the injury was within the scope of the indemnity given by the policy. Container Handlers conceded that the injury was not directly caused by the driving of the vehicle, but claimed that it was directly caused by the vehicle. However, under the Act, bodily injury is not to be taken to be directly caused by the vehicle unless it is "a consequence of the driving of that vehicle or of the vehicle running out of control."[6] In my opinion, the injury to Mr Sutton was not a consequence of the driving of the vehicle because it did not result from any feature of the driving of the vehicle[7].

[18]

Mr Sutton was a crane driver employed by Brambles Australia Ltd ("Brambles") at Port Hedland in Western Australia. Brambles had secured a contract for one of its cranes to undertake work at Camp Tracey, which is located in the remote outback of north-west Western Australia. At Camp Tracey, Mr Sutton was to load three or four uranium containers onto a truck and then proceed to the Nifty Strikes Copper Mine ("Nifty"), where he was to do lifting work during a mining processing works maintenance shutdown.
Brambles contracted with Container Handlers for the crane to be transported to Camp Tracey and then on to Nifty. Mr Sutton was to accompany the crane while it was transported. Container Handlers provided a prime mover with an attached low loader onto which the crane was loaded. Both vehicles were owned by Container Handlers and were registered vehicles under the Road Traffic Act 1974 (WA). It is convenient to refer to the vehicles jointly as "the vehicle". Mr Reibel was the driver of the vehicle. On the morning of 12 March 1998, after loading the crane onto the low loader, Mr Sutton and Mr Reibel drove from Port Hedland to Camp Tracey. The following day, after completing the work at Camp Tracey, they drove to Nifty. At various times during the journey, the roads were so bad that the crane had to tow the vehicle. Mr Sutton gave evidence that breakdowns occurred "quite a lot" and that the men worked as a team in order to keep going[15].
On 14 March 1998, Mr Sutton received instructions to leave the crane at Nifty and return to Port Hedland with Mr Reibel. The following day, Mr Sutton and Mr Reibel loaded a large mine transport truck known as a "Haulpak" onto the low loader for transportation back to Port Hedland. They then set off from Nifty. At approximately midday, Mr Reibel stopped the vehicle in order to carry out a routine inspection. This was his usual practice and such inspections had been carried out during the earlier parts of the journey. It was an exceptionally hot day and the road was rough and sandy. During the course of the inspection, Mr Sutton noted smoke and fumes coming off one of the left rear wheel hubs of the low loader, the third set from the rear. He gave evidence that there was a lot of grease everywhere and that the wheels "were sort of out of shape, so it looked pretty serious." He told Mr Reibel.
Mr Reibel inspected the wheels and decided that they would have to come off and that the axle would have to be chained so as to prevent it from dragging along the road. Mr Sutton assisted Mr Reibel to remove both wheels. Mr Reibel put a chain through two load-securing holes located in the side of the low loader. There were hooks on the ends of the chain. Mr Reibel's plan was to jack up the axle and then connect the hooks with each other to form a cradle to hold the axle. Mr Reibel jacked up the axle while Mr Sutton attempted to connect the hooks. Mr Sutton was precariously positioned in the wheel hub area of the low loader. He steadied himself by placing his left hand on the chassis. It soon became evident that the chain was not long enough. While Mr Reibel was attempting to jack the axle higher so that the ends of the chain would meet, the axle slipped off the jack. This caused the trail arm assembly that was connected to the axle to drop onto the chassis, crushing Mr Sutton's hand.
It is upon these facts that the question arises as to whether the ICWA is liable to indemnify Container Handlers under the policy it issued. The ICWA was established by the Insurance Commission of Western Australia Act 1986 (WA). One of its functions is to issue, and to undertake liability under, policies of insurance as required by the Act[16]. There was a statutory policy of insurance in the form of the Schedule to the Act in relation to each of the prime mover and the low loader. The third party claim was based on those policies. As noted earlier, it is convenient to refer to them as one policy. The construction of the policy requires an examination of the Act as well as the contents of the standard form policy set out in the Schedule ("the statutory policy").

[39]

In this Court, Container Handlers correctly conceded that the driving of the motor vehicle did not directly cause the injury to Mr Sutton. Accordingly, the only question in the appeal is whether the injury was directly caused by the motor vehicle.
As the second reading speech indicates, the Act was amended to delete expressions such as "caused by the use of", "in the use of", "arising out of the use of", "in the use of a motor vehicle", "caused by or arises out of the use of", "as the result of the use of a motor vehicle" and "caused by or arising out of the use of". In their place was substituted the expression "directly caused by, or by the driving of, [a] motor vehicle". In addition, the meaning of the expression "directly caused by ... [a] vehicle" was restricted by the terms of s 3(7).
The expressions "directly caused by ... the vehicle" and "directly caused by ... that vehicle" are curious. At first sight, they seem to proceed on the same theory as the law of deodands - that inanimate objects are the cause of the harm that people suffer by coming into contact with them. Both scientific and modern common law doctrines of causation as well as common sense, however, deny that inert objects such as vehicles cause anything. Whilst the use of inert objects may have effects, this is because they are the instruments by which living creatures bring about those effects. Dynamic physical events such as floods, earthquakes, volcanoes and tidal waves may bring about effects and properly may be regarded as causing those effects. Nevertheless, the notion that a vehicle may cause death or bodily injury without human intervention is not easy to understand. What, then, do the words in s 6(1)(b) and the Schedule mean when they refer to "the death of or bodily injury to any person directly caused by ... [a] vehicle"?
There are two views as to the meaning of the expression "the death of or bodily injury to any person directly caused by ... [a] vehicle". The first view is that the expression simply looks to the vehicle as the harm-causing instrument and requires a direct and immediate connection between the vehicle as the harm-causing instrument and the death or bodily injury. Two considerations support this view. One is that the expression "directly caused by ... [a] vehicle" is in apposition to the expression "directly caused by ... the driving of ... [a] vehicle". The apposition of the two expressions indicates that the first limb means what it says and that, for the purpose of the Act, the vehicle itself can be regarded as causing death or bodily injury. The second consideration is that the expression "directly caused by ... [a] vehicle" was substituted for expressions such as "caused by the use of" and "arising out of the use of" which had implied a causal connection between a human actor and the death or bodily injury. The absence of a reference, express or implied, to an actor in the first limb in s 6(1)(b) and the Schedule indicates that it is the vehicle itself that is deemed to cause the death or bodily injury.
The second view of s 6(1)(b) and the Schedule is that they look to s 3(7) and require the words of that sub-section to be read into their provisions so that the causal agent is always a driver or at least a person controlling the vehicle. One considerable difficulty with this view is that it renders redundant the second limb in s 6(1)(b) and the Schedule.
In my view, for the reasons set out above and more particularly because of the relationship of s 3(7) to s 6(1)(b) and the Schedule, the first of these two views is the correct one. The expression "directly caused by ... [a] vehicle" looks to the vehicle as the harm-causing instrument and requires a direct and immediate connection between the vehicle as the harm-causing instrument and the death or bodily injury.

[47]

In Motor Accident Commission v ANI Corp Ltd, Cox J in the Full Court of the Supreme Court of South Australia refused to follow the dicta of Olsson J[29]. Cox J said that the sub‑section of the South Australian legislation in question did not express a qualification, condition or exception to a general obligation, undertaking or liability created by the policy of insurance set out in the relevant Schedule to that legislation; rather, the sub-section limited the scope or meaning that would otherwise be given to the expression "caused by or arising out of the use of"[30]. His Honour said that in substance the legislature had defined a term or expression used in the Schedule[31]. Lander J agreed that the sub‑section was a definitional provision and said that it did not purport to include any condition for indemnity under the statutory policy, but merely provided for the scope of the indemnity under that policy[32].
In my opinion, the true construction of s 3(7) is one somewhere between these competing views. To regard s 3(7) as a mere definition of the words "caused by ... [a] vehicle" is to overlook its content, structure and effect. First, s 3(7) does not use the term "directly". It is therefore at best a definition of only part of the first limb of the statutory formula, namely, "directly caused by ... [a] vehicle". Second, unlike a true definitional clause, it does not take the expression "caused by ... [a] vehicle" and declare that it means "a consequence of the driving of that vehicle or of the vehicle running out of control." Instead, its structure assumes that what is "not [to] be taken to have been caused by a vehicle" is within the expression "directly caused by ... [a] vehicle". Then, by using a double negative in the passive voice, it excludes what would otherwise be within the ordinary meaning of that expression. Third, s 3(7) cannot be sensibly used as a definition without excising certain words in s 6(1)(b) and the Schedule - particularly the word "caused" in the first limb - and reversing the passive tense and negative structure of s 3(7) and then rewriting the words of s 6(1)(b) and the Schedule. Thus, to read s 3(7) as a true definitional provision requires s 6(1)(b) and the Schedule to be rewritten as follows:

[49]

Thus, to treat s 3(7) as a true definitional provision has the result that the first limb - "directly caused by ... [a] vehicle" - is completely covered by the second limb - "directly caused by ... the driving of ... [a] vehicle" - except for those cases where the vehicle runs out of control. In other words, it renders redundant the first limb, that is, "directly caused by ... [a] vehicle". I cannot believe that any parliamentary drafter would go to such trouble to achieve the effect that the true definition theory of s 3(7) requires. The drafter could have achieved that effect simply by using the words "death of or bodily injury to any person directly caused by the driving of the vehicle or by the vehicle running out of control". It would require a low estimate of the drafter's drafting ability to believe that he or she would have used the first limb and the ungainly language of s 3(7) to achieve this result when it could have been achieved so simply.
All these considerations point strongly - indeed overwhelmingly - against the view that s 3(7) is a true definitional provision.
The better view of the relationship between s 3(7) and s 6(1)(b) and the statutory policy is that s 3(7) limits rather than defines or excludes the operation of s 6(1)(b) and the statutory policy. If the indemnity is activated only because the death or bodily injury was directly caused by the vehicle, s 3(7) makes it necessary to determine whether the death or injury was a consequence of the driving of the vehicle or of the vehicle's running out of control. Thus, s 3(7) limits the scope of the words "directly caused by ... [a] vehicle" in s 6(1)(b) and the statutory policy by imposing an additional requirement. Even if the vehicle directly caused the death or bodily injury, the statutory policy applies only if the person suing on the indemnity also shows that the death or bodily injury was a consequence of the driving of the vehicle or of the vehicle's running out of control.
The interpretation put forward by the ICWA effectively merges the two separate and distinct limbs of the statutory formula into one broad question: was the death or bodily injury directly caused by the driving of the vehicle or the vehicle's running out of control? As I have indicated, this would render the first limb of the statutory formula superfluous unless the death or injury were a direct consequence of the vehicle's running out of control.
Moreover, acceptance of the ICWA's interpretation requires reading the term "directly" - which does not appear in s 3(7) - into that sub-section. That interpretation effectively seeks to replace the words "a consequence of" with the words "a direct consequence of" or "directly caused by". It gives the words "caused by ... [a] motor vehicle" in the statutory policy no content at all, except that which can be derived from s 3(7). It is clear that under the first limb of the statutory formula, "directly" is relevant only to the question whether the injury was caused by the motor vehicle. That question looks to the direct connection between the injury and the motor vehicle, not the injury and the driving of the motor vehicle. It is not correct for the ICWA to submit, as it did, that Container Handlers' interpretation gives "directly" no work to do.
In support of its construction argument, the ICWA refers to statements in the second reading speech to the Amendment Bill that the object of the 1987 amendments was to indemnify in respect of "the payment of damages for injury or death sustained by persons in consequence of the negligent driving of motor vehicles."[33] (emphasis added) However, while statements in second reading speeches concerning legislative intent are a guide - often a useful and sometimes a definitive guide - as to the meaning of the legislation, they do not replace the words of the Act[34]. Under s 6(1)(b) and the Schedule, the cover provided by the statutory policy is for "all liability for negligence", not merely liability for negligent driving. In the seminal case of Government Insurance Office of NSW v R J Green & Lloyd Pty Ltd, this Court considered the wording of legislation similar to the predecessor of s 6[35]. Barwick CJ, who gave the leading judgment, said that it is the bodily injury that must be caused by, or arise out of, the use of the motor vehicle, not the liability for that injury[36]. His Honour said that liability may arise from a tortious act other than the negligent use of a motor vehicle[37]. In the present case, the Full Court accepted that this distinction is maintained in the present statutory formulation[38]. The Full Court therefore concluded that under the statutory policy, cover may apply where the death or injury was directly caused by a vehicle, even if liability in negligence arises out of an unsafe system of work[39]. The statutory policy will also apply if, by reason of a defective inspection system, the brakes on a vehicle fail and cause a collision, even though the driver was not negligent with respect to the collision.
The interpretation proposed by the ICWA may be contrasted with the interpretation adopted by the Full Court. The Full Court's interpretation recognises the separate areas of operation of the two limbs. At the same time the Full Court's approach gives effect to the intention of the legislature as it was expressed through the Amendment Act. That intention was to narrow the scope of the statutory policy by connecting liability under the statutory policy with the locomotion of the vehicle insured. The link with the locomotion of the motor vehicle is maintained through the requirement that the injury be a consequence of the driving of the vehicle or its running out of control. This interpretation of s 3(7) reverses the effect of the decision in Dickinson and earlier cases[40] while maintaining the distinction in s 6(1)(b) and the statutory policy between death or injury directly caused by driving and death or injury directly caused by the vehicle. It effectively adopts part of the argument of the insurer that failed in R J Green & Lloyd Pty Ltd[41]. In that case, the insurer argued[42] that:

[59]

The ICWA contends that the falling of the axle was not a direct (or even indirect) consequence of the driving of the vehicle. It submits that common sense and experience show there was no causal connection at all between the driving of the vehicle and the injury, once regard is had to the intervening acts associated with the repair of the vehicle. The ICWA contends that the injury was a consequence of the negligent acts of Container Handlers and Mr Reibel, namely, the failure to provide a safe system of work and the negligent carrying out of the repairs, and that the driving of the vehicle was merely the occasion for that negligence to operate.
In reply, Container Handlers submits that the relationship between the driving and the consequent injury need not be immediate, nor need it be direct. It contends that the injury may be a consequence of the driving even though other causally relevant events intervene. It argues that in this case the injury was a consequence of the driving of the low loader, because there was an unbroken sequence of causally connected events commencing with the driving and leading to the injury. It submits that the driving caused a mechanical problem which required immediate action. The driving of the vehicle therefore generated a risk that Mr Sutton or Mr Reibel might be injured when attempting to correct such a mechanical problem. That risk eventuated. The intervening acts of the driver and Mr Sutton, therefore, did not preclude a finding that there was a relationship of cause and consequence between the driving and the injury, as they were elements in the sequence of causally related events. In support of its argument, Container Handlers refers to a number of tort cases which address the issue of the requisite causal connection for the purpose of establishing liability[46]. It submits that in this case the fact that the vehicle had to be repaired was "the very kind of thing" likely to result from Container Handlers' negligence. The ICWA answers that submission by contending that "consequence of" is not the same as the requisite causal connection for the purpose of establishing tortious liability. A negligent act can be a direct or indirect contributing cause of the intervening act and therefore remain a cause of the damage in an action in tort. The ICWA also submits that the chaining of the axle cannot possibly be described as the very risk arising from the manner of driving.
In my view, cases which deal with causation in tort provide little assistance in the present appeal. Those cases consider the causal connection between a particular breach of duty and a particular loss or damage. As I have stated, under the Act it is necessary to establish a link between the driving of the vehicle and the death or bodily injury in question, not between the basis for liability and the death or injury.
The word "consequence" is an ordinary English word and should be interpreted as such. The Australian Oxford Dictionary[47] defines "consequence" as "the result or effect of an action". It is therefore necessary to determine whether a reasonable person, properly instructed as to the meaning of s 3(7), would regard the death or injury as an effect of the driving of the vehicle.
The statutory context of the words tends against the view of Olsson J in Wagner that the injury must result from the driving in terms of proximate cause and effect[48]. To equate consequence with proximate cause is tantamount to saying that there must be a direct, dominant or immediate connection between the driving and the death or injury. If the words "in consequence of" were given that interpretation, the first limb of the statutory formula would again merge with the second. The legislature has chosen to use the term "a consequence" in s 3(7) in preference to the terms "direct cause" or "proximate cause"; in doing so, it is likely that it intended the term "a consequence" to have a different meaning from "direct cause" or "proximate cause"[49].
In Wagner, King CJ said that it may be true that the phrase "in consequence of" emphasises the sequential as distinct from the causal nature of the required link to a greater extent than the expression "caused by or arising out of"[50]. However, his Honour went on to say that he found it "difficult to envisage concrete examples in which bodily injury could be said to be 'in consequence of' driving although it could not at least be said to be 'arising out of' the driving."[51] Whether or not this is so, in the context of the Act the expression "a consequence of" emphasises the result or effect of the driving rather than the driving causing the result. This distinction is important in an insurance context where cause is frequently - perhaps usually - equated with "proximate" or "dominant" cause. Although "consequence" involves notions of causation, the term "consequence" - with its emphasis on effect - places less emphasis on the proximity of cause and effect than the term "cause" may do in various contexts. As Taylor J explained in The Commonwealth v Butler[52]:

[66]

It seems that Parker J, in referring to the "mere fact or circumstance that a motor vehicle is operated or driven", was referring to an act that can properly be called an act of "driving". In my view, the Full Court misinterpreted his Honour's judgment so as to encompass acts that do not fall within the meaning of "driving", acts such as equipping the vehicle and undertaking repairs.
The amendments enacted by the Amendment Act were intended to reduce the scope of indemnity imported by the word "use". The intention was effected by replacing the word "use" with the word "driving". "Driving" is a much narrower concept than "use". Under earlier legislation dealing with the insurance of motor vehicles - particularly under compulsory third party insurance legislation - courts had interpreted the word "use" to include activities with respect to a motor vehicle that would not ordinarily be regarded as acts of driving[59].
The Act does not define "driving". The debate regarding the Amendment Bill in the Legislative Council indicates that the word was to have its ordinary English meaning[60]. The Australian Oxford Dictionary[61] and The New Shorter Oxford English Dictionary[62] relevantly define "drive" as to "operate and direct the course of" and to "operate and control the course of" a vehicle respectively. Thus, when the Act refers to a consequence of the "driving" of the vehicle, it refers to a consequence of the actual operation and control of the direction and speed of the vehicle. This is confirmed by the expression "or of the vehicle running out of control" in the second part of s 3(7), which conveys the notion of a vehicle in motion. This meaning of the word "driving" also finds support in a number of cases, in which the notion of driving has been held to comprehend the controlling of the movement and direction of the vehicle in a substantial sense[63]. Reconciling the outcomes in these cases, however, is probably impossible. The inconsistencies in the conclusions reached by the courts when applying the concept of "driving" show that it is not always easy to draw a line between an activity that can be described as "driving" and one that cannot be so described. In any event, neither the decisions nor the reasoning in each case support the proposition that, after the driver has stopped and got out of the vehicle, he or she is still driving it.

[73]

Transport Accident Commission v Treloar[68] gives some support for these views. In that case McGarvie and Gobbo JJ held that an incident is caused by the driving of a motor car if it is "caused by some feature of the driving such as the speed at which, the inattention with which or the place to which the car is driven."[69]
Container Handlers relies on a number of South Australian cases which consider whether an injury was "in consequence of the driving" of a vehicle[70] in support of its submission that it is sufficient that a connection between the injury and the control and movement of the vehicle exists that is not merely a temporal connection. In WorkCover Corporation v Reiter[71], for example, the plaintiff was injured in the course of unloading wool bales from a stationary trailer, which was attached to a prime mover. The motion of the driving of the prime mover had destabilised a bale of wool. As the bale was unloaded, it fell off the trailer, striking the plaintiff. The Full Court of the Supreme Court of South Australia held that the required connection was present between the control and movement of the prime mover and the plaintiff's injury[72].
Section 99(3) of the Motor Vehicles Act 1959 (SA), the sub-section considered in the South Australian cases, is different from s 3(7) of the Act. Section 99(3) provided at the relevant time that "death or bodily injury will not be regarded as being caused by or as arising out of the use of a motor vehicle if it is not a consequence of" the driving of the vehicle (emphasis added). Despite the difference in wording between the South Australian legislation and s 3(7) of the Act, statements in the South Australian cases construing the words "consequence of" assist in construing the same term in s 3(7).
However, the decisions in the South Australian cases do not otherwise support Container Handlers' submissions. On the contrary, the cases deny the broad proposition for which Container Handlers contends. Thus, in Wagner[73], the Full Court of the Supreme Court of South Australia held that an injury sustained while a backhoe was being prepared for digging was not a consequence of the driving of the vehicle. In that case the plaintiff was employed to operate a front-end loader equipped with a backhoe. The loader was registered as a motor vehicle. When the backhoe was to be used, the wheels of the vehicle were raised and it was incapable of being driven along a road. After driving the vehicle to a work site, the plaintiff sustained injury when the vehicle had been so stabilised and he was preparing to use the backhoe for digging. The Court unanimously held that the injury was not a consequence of the driving of the vehicle. The Court held that there was a distinct separation between the activity of driving and the activity of preparing the vehicle for digging[74].
In Heath v Corporation of City of Tea Tree Gully[75], the plaintiff sustained injury while loading the bucket of a front-end loader with concrete slabs. The driver of the loader had tilted the bucket in order to assist the plaintiff. At the time, the loader was stationary at the kerb, but the driver intended to drive it to a truck "to drop off the load"[76]. A majority of the Full Court of the Supreme Court of South Australia (Cox and Debelle JJ, Prior J dissenting) held that the injury was not "a consequence of" the driving of the loader. Cox J said[77]:

[76]

Although cases in other States may be useful when considering whether death or injury is a consequence of the driving of a vehicle, those cases must be read in the light of the legislative history and purpose of the Act. That history and purpose is found in the scope of the Act as perceived when it was enacted in 1943, the decision in Dickinson[79] and the Amendment Act enacted in response to that case. According to the second reading speech for the Amendment Bill, the Act was originally perceived as confined to indemnifying against the consequences of negligent driving. However, Dickinson held that injuries sustained by a passenger when a stationary car caught fire while the driver was absent arose out of the "use" of the vehicle. This was seen as repudiating the purpose of the Act. To overcome the effect of Dickinson, the legislature repealed all expressions such as "caused by the use of", "arising out of the use of", "in the use of a motor vehicle", "caused by or arises out of the use of" and "as the result of the use of a motor vehicle". It then narrowed the indemnity by requiring that death or injury be directly caused by the driving of the vehicle or, if directly caused by the vehicle, that death or injury be a consequence of the driving of the vehicle or of the vehicle's running out of control. The legislative history of the Act shows, therefore, that the indemnities given by policies issued under the Act no longer cover liabilities that merely arise out of the use of motor vehicles. To come within the indemnity given by a policy, there must be a causal connection between the death or injury and the driving of a motor vehicle.
It is true that, if death or injury is directly caused by the vehicle, it is not necessary that it be directly caused by the driving of the vehicle. It is sufficient if the death or injury is a consequence of the driving. Whichever limb of the indemnity is invoked, however, the legislative history and purpose of the Act demonstrate that there must be a causal link between the death or injury and some feature of the driving of the vehicle. It is not enough that the death or injury is the result of the use of the vehicle. The death or injury must be a consequence of the driving of the vehicle. The definite article "the" in front of "driving" emphasises the need to find a causal connection between the death or injury and some feature of the driving of the vehicle. It is at this stage that the case for Container Handlers fails.
Nothing in the evidence suggests that any particular feature of the driving of the vehicle brought about the injury to Mr Sutton. Nothing in the evidence suggests that some feature of the driving, such as running into a drain or avoidable pothole or driving at excessive speed, caused the low loader's wheel bearings to fail or the wheels to lose their shape. If some feature of the driving had this effect, it might plausibly be suggested that Mr Sutton's injury was a consequence of that driving, because it led to the repair work which in turn led to the injury. On that hypothesis, the injury was arguably a consequence, although not a direct consequence, of the driving of the vehicle. Nevertheless, nothing in the evidence suggests that the injury to Mr Sutton was the result or effect of some feature of the driving of the vehicle.
The mere fact that Mr Sutton's injury would not have occurred if the vehicle had not been driven from Port Hedland to Camp Tracey and then to Nifty or from Nifty to Port Hedland does not mean that, for the purpose of the Act, the injury to Mr Sutton was a consequence of the driving of the vehicle. The use of the vehicle to transport a heavy crane and a mine transport truck on bad roads was a necessary pre-condition for the sustaining of the injury. However, the injury was not a consequence of any feature of the driving of the prime mover and its attached load. The injury was not a result or effect of some feature of the driving of the vehicle. Taylor J's remarks in Butler[80], although phrased in terms of "cause" and "effect" rather than "consequence", are instructive in this context:

[82]

Mr Sutton commenced in the District Court of Western Australia proceedings against Container Handlers alleging negligence. Nisbet DCJ gave judgment in favour of Mr Sutton and awarded him damages of $926,043.36. His Honour found that a prudent employer in the position of Container Handlers would have properly equipped its vehicles for the carrying out of emergency roadside repairs to wheels and axles and that Container Handlers had failed to do so in the present case. The trial judge also found Container Handlers vicariously liable for the negligence of Mr Reiball in failing, among other things, to ensure Mr Sutton was clear of the chassis of the low loader prior to Mr Reiball's attempt to jack up the axle. Neither the judgment in favour of Mr Sutton, nor the findings against Container Handlers or Mr Reiball in respect of negligence, were the subjects of an appeal to the Full Court.
As part of the proceedings at trial, Container Handlers brought two third‑party claims upon several policies of insurance. The first was brought against the appellant, the Insurance Commission of Western Australia ("the Insurance Commission"), upon compulsory third‑party insurance policies, and the second against Union des Assurances de Paris ("UAP") upon a policy entitled "General and Products Liability Policy". Both claims failed at first instance. On appeal, the Full Court upheld the third-party claim against the Insurance Commission but dismissed the appeal in so far as it concerned UAP.
The Insurance Commission now appeals to this Court against the orders of the Full Court obliging it to indemnify Container Handlers for the damages payable to Mr Sutton. The Insurance Commission joined UAP as second respondent and Mr Sutton as third respondent. After the conclusion of argument on the appeal, the Insurance Commission discontinued its appeal against Mr Sutton. He had played no active part in the appeal.
The primary issue in this appeal is the extent to which policies of insurance issued by the Insurance Commission in respect of the prime mover and low loader respond to the injury suffered by Mr Sutton. By virtue of the provisions of the Motor Vehicle (Third Party Insurance) Act 1943 (WA) ("the Motor Vehicles Act"), to which it will be necessary to refer below, the policies will only apply if the injury suffered by Mr Sutton was "directly caused by, or by the driving of, [a] motor vehicle". The Insurance Commission submits that the injury suffered by Mr Sutton falls outside that expression. As will appear from these reasons, that submission should be accepted with the result that the appeal should be allowed with costs, the relevant orders of the Full Court should be set aside and, in place thereof, the appeal by Container Handlers to that Court against the Insurance Commission should be dismissed with costs.

[106]

The phrase "caused by … [a] motor vehicle" is preceded in the governing clause of the policy by the adverb "directly". This word qualifies the whole of what follows. That is divided into two branches; the first has just been stated. The second is "caused … by the driving of" the motor vehicle. However, s 3(7) applies according to its terms only to one of those branches. That is the first branch and, as noted above, it is with that branch that this appeal is concerned.
Roberts‑Smith J, with whom Wallwork and Wheeler JJ agreed, held that the effect of s 3(7) was quite different. Their Honours treated it as dividing the question of whether an injury was directly caused by a motor vehicle into two parts: first, was the injury "directly caused" by a vehicle, and secondly, was the injury a consequence of the driving of the vehicle or of the vehicle running out of control[92]. Their Honours accepted that, by virtue of s 3(7), the injury need not be a direct consequence of the driving or of the vehicle running out of control for the purposes of the second question[93]. The Full Court's approach, which is adopted in modified form by Container Handlers in this Court, should not be accepted.
Section 3(7) is an interpretation provision. It does not enjoy a substantive effect independently of the phrase "caused by … [a] motor vehicle" as found in the policies. Rather, the sub‑section operates to limit the meaning otherwise to be attributed to that phrase, which has been identified above as "the first branch". It follows that, contrary to the reasoning of the Full Court, s 3(7) does not operate as a criterion separate from, and in addition to, the requirement that the injury be caused by a vehicle.
The absence of the word "directly" from s 3(7) is significant. That circumstance indicates that s 3(7) is concerned with the cause of the injury (being the driving of a vehicle or the vehicle running out of control), rather than the quality of the connection between that cause and the injury. As a result, s 3(7) does not remove the requirement that an injury be "directly" caused by a vehicle or, to frame the requirement in terms of s 3(7), that the injury be directly caused by the driving of a vehicle or by a vehicle running out of control.
In its written submissions, Container Handlers conceded that Mr Sutton's injury was not directly caused by the driving of the prime mover and low loader. Nor is it suggested that Mr Sutton's injury was directly caused by the vehicles running out of control. Once there is appreciated the proper construction of the phrase "directly caused by … [a] motor vehicle " in the light of s 3(7), Container Handlers' concession is fatal to its success in this appeal. Therefore it is unnecessary to consider the submissions made by the parties as to the proper meaning of "driving" and the existence or otherwise of a causal connection between that driving and Mr Sutton's injury sufficient to give rise to liability under the policies.

[108]

The law books are full of disputes over the meaning of insurance policies. Because disputes about language are notoriously liable to produce different outcomes[94], a rule of construction was long ago adopted by the English courts to the effect that intractable ambiguities in printed instruments, such as insurance policies, should be resolved in favour of the person receiving them and against the person propounding them[95]. This was a useful rule. Amongst other things, it encouraged insurers to express policy conditions clearly where they limited recovery, so that the insured would know precisely whether it was entitled to indemnity or not.
The maxim was applied by this Court from its earliest years[96]. It may occasionally still be useful where dictionaries and logic alone do not resolve an ambiguity[97]. However, the limitations and defects of the maxim were also recognised long ago[98]. It did not afford an alternative to proper legal analysis. This appeal, which concerns a statutory policy of insurance, illustrates another limitation in the usefulness of the maxim.
In construing a policy, issued in terms adopted by a Parliament to achieve legislative objectives, the interpreter enters a different realm of discourse. The object there is not, as such, to uphold a bargain fairly defined between private parties. Ultimately, it is to uphold the purpose of the legislature in enacting that form of policy.
This is the context in which the problem presented by this appeal[99] must be decided. The facts and circumstances giving rise to the controversy are explained by McHugh J[100], Gummow J[101], Callinan J[102] and Heydon J[103]. The key provisions of the statutory policy issued by the appellant (Insurance Commission of Western Australia) to the first respondent (Container Handlers Pty Ltd) are set out[104]. So are the relevant provisions of the Motor Vehicle (Third Party Insurance) Act 1943 (WA) ("the Act")[105], as amended following the decision of this Court in Dickinson v Motor Vehicle Insurance Trust[106]. It is unnecessary to repeat this material again. I can go straight to the controversy for decision.

[109]

Dickinson was a case addressed to the previous, more familiar and broader language of the Act before its amendment in Western Australia in 1987[107]. As the passages from the legislative records cited by Heydon J demonstrate[108], it was a clear purpose of those amendments to reduce the scope of the indemnity offered by the policy then provided by the Act. The proponents of the change aimed to lower the costs of premiums levied in respect of the policy. This measure was one of many enacted throughout Australia to diminish the burdens of insurance premiums for motor vehicle owners, employers and others involved in risk[109].
Because there are so many motorists, obliged by the Act to obtain third party policies, the reduction or containment of insurance premiums became an electoral issue[110]. The limitation of the scope of the indemnity provided by the policy was clearly deliberate. Necessarily, it would sometimes leave persons unprotected whose injuries arose out of the use of a motor vehicle who would have been protected by the Act in its earlier form. However, that was no more than the necessary consequence of the change in the legislation.
Mr Ashley Sutton suffered such an injury. It gave rise to his action against the first respondent and the first respondent's demand on the Commission[111]. So far as is known, Mr Sutton, an employee of an independent contractor and not an employee of the first respondent, will recover his judgment from the first respondent, following the negligence found at trial and unchallenged in this appeal. He will do so whatever is the outcome of the appeal. Nevertheless, cases will arise, and can readily be imagined, where, unless recovery could be secured from an insurer, under the policy issued pursuant to the Act, no monetary damages would be available to the injured person or that person's dependants. In such a case, the insured and the injured person would be unable to look to the insurer for indemnity. A judgment in negligence would be valueless.
These facts, and the large number of policies issued by the Commission under the Act, warranted the grant of special leave. In my opinion, the appeal must be allowed. My reasoning is substantially the same as that of Heydon J.
The critical consideration that, for me, resolves the construction of the policy contrary to the propositions advanced by the first respondent, is the fact that it was the clear purpose of the Western Australian Parliament, in adopting the amendments that introduced the words now in contention, to reduce the ambit of the indemnity. Those words restricted the Commission's liability by reference to the limiting notions of causation (directly)[112] and locomotion (driving) of the insured motor vehicle[113]. Although the use of words such as "direct" and "proximate" has been criticised by courts in the context of the legal notion of causation at common law, the introduction of the word "directly" into the Act obliges courts to give that word due meaning[114]. It cannot be ignored simply because courts disapprove of such notions. In this case, it confines the scope of the indemnity provided by the statutory policy.
Within the principles adopted by this Court in Dickinson, in explaining the former language of the Act ("caused by or arising out of the use of" a motor vehicle), the injury to Mr Sutton would almost certainly have qualified for indemnity of the first respondent by the Commission. Mr Sutton's injury, even if not "caused by" the use of a motor vehicle, would then have been viewed as one "arising out of" such use. The latter concept was wider than the concept of causation, appearing on its own[115]. But what of the protection under the Act as amended?
The adoption of the present language, by the 1987 amendments, signalled a change in two important respects. First, the broader words of connection ("arising out of") were deleted; secondly the adverb "directly" was inserted to modify the words "caused by". In the context of the purposes of Parliament, and the terms of the repeated references in the Act and in the statutory policy to these changes, it is clear that the word "directly" governed not only the words "caused by" but also the phrase within commas (", or by the driving of,"). In this Court, the first respondent conceded as much. In my view, that was a proper concession.
Confined to the terms of s 4(1) of the Act and the insuring clause of the statutory policy, the first respondent could arguably contend that Mr Sutton's injuries were "directly caused by" the motor vehicle, in the usual sense of those words. Under the Act, the term "motor vehicle" included the "low-loader" ("trailer"). The trailer had developed a defect during driving. It was whilst attempting to repair that defect that the incident occurred that caused the chassis of the trailer to fall. It was that event, in turn, that trapped Mr Sutton's hand and injured him.
Without more, an argument would arise that, viewed in isolation, the uncontested "bodily injury" to Mr Sutton was "directly caused by" the motor vehicle, in the sense that it was immediately caused by contact with part of that vehicle. Arguments to the contrary would lay emphasis on the intervening causative agents, namely the first respondent's employee, Mr Reiball, or the first respondent itself, in failing to provide proper equipment for the eventuality of breakdown that occurred. However, I would accept direct causation "by … the motor vehicle", in the sense of the direct physical engagement of part of the trailer with the hand of Mr Sutton.

[110]

The critical phrase in the statutory policy does not, however, appear in isolation. By condition 3 of the policy, it is provided that the Commission is entitled to "all rights remedies and benefits that may accrue to it by virtue of the Act". By condition 4, the contract of insurance is rendered (as it would in any case have been) "subject to the provisions of the Act"[116]. And once the Act is incorporated, it imports s 3(7) into the policy. It is in that sub-section that a clear indication is provided limiting still further the ambit of the insuring clause in respect of that part of the cover in the policy concerned with bodily injury "caused by a vehicle". Those who drafted the insuring clause were presumably concerned about the potential risk inherent in the expression "caused by a vehicle". Hence the language of s 3(7), with its confusing double-negative.
The provision in s 3(7) of the Act that a bodily injury shall not be "taken" to have been "caused by a vehicle" is clearly in the nature of a limiting definition of that phrase as it appears elsewhere. It imports a requirement that would not otherwise have been read into that expression. This is that, to call on the policy, the injury must be "a consequence of the driving of that vehicle or of the vehicle running out of control". It was never suggested that the last mentioned expression could apply to the circumstances in which Mr Sutton was injured. This left as the only basis for claiming indemnity from the Commission a suggestion that the injury had been "caused by a vehicle" in the sense of being "a consequence of the driving of that vehicle". But does Mr Sutton's injury fall within that phrase?
The Commission advanced two answers to this question. First, the injury to Mr Sutton was not "a consequence of the driving" of the vehicle in the ordinary sense of those words. It was a consequence of the failure of the first respondent to provide proper equipment for a predictable breakdown of the vehicle and a consequence of the negligent way in which Mr Reiball performed the repair of the trailer, the doing of which directly caused the injury to Mr Sutton's hand.
Secondly, even if, contrary to this contention, the first respondent could come within s 3(7), taken on its own, the Commission urged that the purpose and operation of that sub‑section was not designed to afford a distinct, separate and free‑standing criterion of indemnity[117]. Its language ("shall not be taken") makes it clear that the sub-section was a special definition of the phrase "caused by a vehicle". Accordingly, the operative provisions of the sub-section are to be inserted into the statutory insuring clause where that phrase appears. Doing this leaves the remaining words still governed by the adverb "directly", appearing before the defined words. Indemnity is not provided unless the bodily injury was directly a consequence of the driving of that vehicle. It is unsurprising that "directly" was not repeated in s 3(7) of the Act. There was no need to do so. That word, appearing in the substantive provisions of the Act (ss 4(1) and 6(1)) and in the statutory policy, already governed the defined expression.

[111]

To the extent that the Full Court mistook s 3(7) of the Act as a separate foundation for indemnity, and not as a definitional provision confining still further the ambit of that indemnity, it erred. Its error is made plain by an analysis of the language of the policy read in the light of the Act, understood so as to achieve the statutory purposes. The purposive construction of legislation is now the settled approach of this Court[118].
There is no reason to withhold that approach in this case because the subject of the legislation concerns a policy of insurance or because that insurance is compulsory for motor vehicle owners or because it is important to provide effective coverage for relevant events involving motor vehicles and injured persons. All of these considerations may be accepted. Faced with real ambiguities, the Act would be treated as beneficial and protective. In other contexts, its words might be given a broad construction[119]. However, in deriving the meaning of the words of the Act critical to this appeal, it is impossible to ignore the statutory history and legislative purpose of the 1987 amendments that introduced those words. The purpose of reducing the ambit of coverage, and hence the amount of premiums, was clearly intentional. Courts must give effect to, and not frustrate, such a purpose when it is clear from the language of the legislation. They must do so whatever their views may be about the wisdom of its policy[120].
Of course, each case of causation, including direct causation, depends on its own facts. Line-drawing is inescapable in the determination of issues of causation for legal purposes[121]. In respect of compulsory motor vehicle insurance, it frequently arose under the previous insuring clause[122]. The present Act, with its new formula, is no different in this respect.
Approaching the application of the policy in this way, I would accept that Mr Sutton's injury was directly caused by the motor vehicle. However, it was not a consequence of the driving of the vehicle. The Commission must succeed.
Hard and fast rules cannot be provided by particular instances. Cases, such as the present, may sometimes suggest the way that courts should approach the statutory language from the standpoint of achieving its purpose. Nevertheless, individual instances are no more than that. They do not afford binding precedents to be used in resolving cases involving different facts[123]. Inevitably, borderline cases will continue to present[124]. However, this was not one of them.

[132]

The legislature therefore clearly set out to arrest the judicial trend, of which Dickinson is, if not the high water mark, not much less than a lap of the tide below it, of regarding the merest connexion of a motor vehicle with the infliction of personal injury as an occasion for holding that the injury was caused by, through, or in connexion with, or as arising out of, the use of a motor vehicle. There are many examples of this in cases in which similar statutory formulae have been considered. In Government Insurance Office of NSW v R J Green & Lloyd Pty Ltd[127] it was held that an injury sustained during the loading of a stationary truck was an injury arising out of the "use" of a motor vehicle for the purposes of the Motor Vehicles (Third Party Insurance) Act 1942 (NSW). Similarly, in Commercial and General Insurance Co Ltd v Government Insurance Office (NSW)[128] an injury arising out of the negligent use of a mobile crane was also held to be an injury arising out of the use of a motor vehicle within the meaning of that Act. In South Australia, the Motor Vehicles Act 1959 (SA) also used the formula injury "arising out of the use of" a motor vehicle. This Court held in State Government Insurance Commission v Stevens Bros Pty Ltd[129] that an injury caused by a mobile compressor that was being transported on a truck fell within the statutory formula because the machine was designed to be transported from place to place as required by a motor vehicle.
To give the relevant provisions the meaning Container Handlers seeks to place upon them would be to ignore, or to give insufficient weight to the repeated use of the word "directly". But of greater significance it would also be to fail to give effect to the intention manifest in s 3(7) of the Act, that the injury is not to be taken to have been caused by a vehicle if it is not a consequence of the driving of the vehicle, or of the vehicle running out of control. The words "running out of control" clearly refer to and are confined to the notion of a vehicle in motion. The word "driving" should be read to the same effect. The two phrases in which the words separately occur are plainly related and the word used in the latter, "running", conveying the idea of motion, strongly suggests that "driving" in the former is used in the same sense. The structure and language of s 3(7) also lead to the same conclusion.
It may be readily accepted that the legislature was well aware of the expansive meaning that the courts have given to the word "cause"[130]. The selection of the word "consequence" was no doubt carefully considered. It was intended to cut down the expansive meaning which might otherwise, consistently with the approach in other cases, have been adopted. If it were otherwise, and "driving" were to be given the meaning that Container Handlers contends it to have, a relevant injury might be taken to have been sustained absent any negligent human agency in the driving of a motor vehicle: even if, for example, as a result of wear and tear flowing from the driving of it over a long period, an axle fractured while it was stationary in a garage and caused the body of it to collapse and fall upon a passer by. This would be a highly unlikely and unintended result. What is required is more than a sine qua non. The word "directly" and the language of s 3(7) are imperious: the insurer will only be liable if a personal injury or death has been directly caused by the driving, that is the operation of a motor vehicle while it is in the control of a driver in the course of putting it into, keeping it in, or bringing its motion to a conclusion, or if the motion is uncontrolled. The correct way of characterizing Mr Reiball's activities was not as driving either of the vehicles, but of preparing them for driving, that is of being put in motion[131]. What happened to Mr Sutton in the course of that was not a consequence of the driving or the running out of control of the vehicles.

[135]

On 15 March 1998, in the course of a journey in the north-west of Western Australia, the plaintiff, a crane driver, was travelling as a passenger in a prime mover to which was attached a low loader. The driver was an employee of the defendant ("Container Handlers"). Container Handlers owned and operated the vehicles, and used them in a transport business. In the previous three days, pursuant to a contract between the plaintiff's employer and Container Handlers, the vehicles had transported a crane from Port Hedland to various places in which time the plaintiff operated the crane. The crane had then been unloaded and left behind, and on 15 March 1998 the vehicles were carrying a back load to Port Hedland. The weather was extremely hot and the road was rough and sandy. Around midday the driver brought the vehicles to a halt in order to conduct a routine inspection. The plaintiff noticed the emission of smoke and fumes from one of the rear wheel hubs of the low loader. The driver, after examining the wheels, decided that both wheels on that end of the axle would have to be removed and that the relevant axle should be chained up before the journey recommenced. This was not the first occasion over the four days on which mechanical faults had emerged. The plaintiff began to assist the driver in the chaining up process. While they were carrying it out, the axle slipped, jammed the plaintiff's left hand against the chassis, and injured it badly.
The plaintiff sued the defendant, alleging that the defendant was directly liable for negligently breaking a duty of care it owed the plaintiff, and that the defendant was vicariously liable for the driver's negligent breach of a duty of care which he owed the plaintiff. The trial judge (Nisbet DCJ) upheld these allegations and rejected a plea of contributory negligence[133]. These conclusions were not challenged in the Full Court or this Court. Nor was the verdict in the plaintiff's favour of $926,043.36.
The defendant made a third party claim against the present appellant ("the Insurance Commission"). The claim was made under two policies of insurance with the Insurance Commission which were compulsory under s 4(1) of the Act. It provided:

[168]

It is evident from this Second Reading Speech that the Deputy Premier was concerned to remove the words "arising out of" from the Act because they were, as the High Court said in Dickinson v Motor Vehicle Insurance Trust[148], wider than the words "caused by". The suggestion by the High Court that "arising out of" does not require the "direct or proximate relationship" conveyed by the word "caused" evidently stimulated Parliament not merely to narrow the indemnity, by limiting recovery by the word "caused", but also either to emphasise that narrowing of indemnity or further to limit the indemnity by requiring that the death or injury be "directly caused". It is plain that at the very least the amendments were not to be construed as favourable to any possibility of wide recovery.
On the true construction of the policy in the light of s 3(7), it will not indemnify the owner or driver in respect of liability for negligence which may be incurred by that owner or driver in respect of death or bodily injury to any person caused by the motor vehicle, unless the death or injury is directly caused by the driving of the vehicle or by its running out of control. The full range of possible causes of injury by the agency of a motor vehicle is cut down to those which can be characterised as being a consequence of its driving or its running out of control, and further cut down by the requirement that the causal relationship must be characterised as being direct and not something wider. Since the language of the Schedule and s 3(7) is plainly intended as a means of narrowing the scope of indemnity, it is further appropriate to construe the word "consequence" as referring to something narrower than the wide ideas often encompassed in law by references to "causation" and its derivatives: "consequence" here refers to a narrower segment of the wider class of "causes". So far as the process of cutting down is effected by the reference to the driving of the vehicle, the expression is preceded by the definite article, and is used in the composite phrase "a consequence of the driving of that vehicle or of the vehicle running out of control". In that context at least, the words "the driving" refer to the actual control and management of the vehicle while it is in locomotion. "The driving" of a vehicle, in at least its core meaning in this context, is the activity conducted by a human being in the driver's seat who manages and directs the course of its movement by operating the controls - preparing to start, starting, accelerating, braking, steering, giving appropriate signals, operating the horn and lights appropriately, stopping and turning the engine off. In contrast, when the vehicle runs out of control, it is because the course of its movement has ceased to be managed and directed by the operation of the controls, or because, while stationary, its brakes have failed or it has been struck by another vehicle and it has moved off out of control.
The Second Reading Speech revealed an antipathy to the result in Dickinson v Motor Vehicle Insurance Trust[149] and a desire to adopt a narrower test for indemnity than the test ("caused by or arising out of the use") which led to that result. The 1987 amendments are also to be read against the background of authority of this Court distinguishing between driving a vehicle, which was using it, and doing an act intended to make it fit to be driven, which was not using it[150]. The concerns expressed in the Second Reading Speech point strongly against a construction of the legislation which would widen indemnity by overturning that distinction.
It is true that there is an overlap between the two limbs of the policy in relation to driving. This is not an effective answer to the construction advanced above. The overlap exists whatever the construction of "directly" and whatever the construction of "driving".
Here the injury was not "directly" caused by "the driving" of the motor vehicle. It is necessary to commence with the Full Court's analysis, for its orders are not to be set aside merely by reason of Container Handlers having declined to support part of its reasoning and having advanced a more truncated posture. Errors in the reasoning of the Full Court can be identified in three ways.
First, the Full Court fails to give full effect to the word "directly" in the policy, and construes it as if it meant "directly or indirectly". It does so by noting that the word "consequence" in s 3(7) is not qualified by the adjective "direct", and by adopting a process of elision between the reference to non-direct consequences in s 3(7) and the reference to direct causation in the policy. The Full Court's reasoning construes the words "directly" and "consequence of the driving" so broadly as to encompass relationships of causation which are much wider than those words will accommodate. This can be illustrated by the Full Court's statement that arguably it was the way in which the vehicle was driven along rough roads in extreme heat which caused the wheel hub to overheat so as to require its removal and the securing of the axle[151]. The word "directly" points against the inclusion of so long a causal chain.
Secondly, the Full Court adopted an untenable construction of "driving". It said that the "distinct acts of negligence by Container Handlers, or those of its employee driver … were aspects of the fact of operation of the vehicle and so of the driving of it. These included the unserviceable nature of the hydraulic power unit of the low loader and those findings of his Honour as to the driver's negligence … referred [to] above."[152] These findings were[153]:

[176]

In substance these arguments are sound. Each of these items of conduct falls well outside the reach of the expressions "driving" or "consequence of the driving". They go no closer to "driving" than being acts preparatory to driving. They are not consequences of the driving, for it cannot be the case that everything related to wear and tear caused by the driving of a vehicle at any time since it was new was a consequence of the driving in this context. They are items of negligence in relation to which the aftermath of the relevant driving merely affords an occasion for the negligence to cause injury.
Thirdly, even the events which took place after the time when the plaintiff noticed the smoke and fumes until the time when the plaintiff was injured cannot be described as a "consequence of the driving". No doubt the driver stopped the vehicle so as to inspect it with a view to ensuring that it was capable of resuming its movements when he restarted the engine. No doubt his perception that there might be some problem which inspection might detect or avert was in part a perception that driving which had already been undertaken in rough and hot conditions could have caused such a problem, and no doubt that perception was accurate. No doubt the smoke and fumes noticed by the plaintiff were a consequence of the driving. But in the context of the policy and s 3(7), the conduct of a person, after a vehicle has come to a stop and the engine has been turned off, who checks for defects in it with a view to improving its performance before it is placed in motion again, is not "driving". Hence the failure of the driver to give the plaintiff proper instructions, to use the jack with an appropriate footing, and to ensure that the plaintiff was in the clear before jacking commenced, were not within the expression "driving".
It was perhaps as part of an endeavour to sidestep these criticisms, made in the Insurance Commission's written submissions, of the Full Court's reasoning that Container Handlers in its answer to them for the first time declined to support part of that reasoning and conceded that the driving of the vehicle did not directly cause the plaintiff's injury. But its truncated posture is equally open to criticism. It contended that the injury was directly caused by the vehicle and was a consequence of the driving of the vehicle, even though other causally relevant events had occurred before the injury, and that there need not be an immediate relationship between the driving and the injury. The driving of the vehicle on rough roads in conditions of extreme heat caused the risk and the actuality of a mechanical problem requiring immediate action. Alternatively, it contended that the chaining up process which resulted in the injury was part of the ordinary driving of the vehicle. The difficulties in those arguments are that they dilute the meaning of "directly" too much, by extending it to include "indirectly", thereby impermissibly overlooking the significance of that word in s 4, s 6 and the Schedule, and attribute to the words "the driving" in that context a meaning which is wrong.

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