JA & BM Bowden & Sons Pty Ltd v Doughty

Court of Appeal (NSW)|2009-03-31|Before: Giles JA

CITATION: JA & BM Bowden & Sons Pty Ltd v Doughty [2009] NSWCA 82 This decision has been amended. Please see the end of the judgment for a list of the amendments.

JUDGMENT OF: Giles JA at 1; Handley AJA at 37; Sackville AJA at 45

DECISION: (1) Appeal allowed; (2) Set aside the verdict and jugment for the respondent for $535,198 and in lieu thereof verdict and judgment for $278,628; (3) respondent to pay appellant's costs of the appeal and to have a certificate under the Suitors Fund Act if otherwise qualified.

CATCHWORDS: TORTS - negligence - tractor rolled over - driver instructed to keep rollover protection device lowered - driver injured - whether "injury" within Motor Accidents Compensation Act 1999 - owner at fault in giving the instruction - whether fault in use or operation of tractor - (by majority) the use or operation was being driven - not fault in that use or operation.

Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; (2005) 221 CLR 568; Brambles Australia Ltd v Sandy [2006] NSWCA 357; (2006) 47 MVR 207; Hooker v Gilling [2007] NSWCA 99; CASES CITED: Inasmuch Community Inc v Bright [2006] NSWCA 99; Nominal Defendant v GLG Australia Pty Ltd [2006] HCA 11; (2006) 228 CLR 529; Portlock v Baulderstone Hornibrook Engineering Pty Ltd [2005] NSWSC 775; Walfertan Processors Pty Ltd v Dever [2006] NSWCA 289. Toll Pty Ltd v Dakic [2006] NSWCA 58;

PARTIES: JA & BM Bowden & Sons Pty Ltd - Appellant Paul Doughty - Respondent

COUNSEL: L King SC & P Stockley - Appellant I Roberts SC & A Black - Respondent

SOLICITORS: TurksLegal - Appellant Walsh & Blair Lawyers, Wagga Wagga - Respondent

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 10/07 (Wagga Wagga)

LOWER COURT JUDICIAL OFFICER: Charteris DCJ

LOWER COURT MEDIUM NEUTRAL CITATION: Paul Doughty v JM & BM Bowden & Sons Pty Ltd, Charteris DCJ, 8 April 2008, unreported.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40198/08 DC 10/07 (Wagga Wagga)

GILES JA HANDLEY AJA SACKVILLE AJA

Monday 20 April 2009 J A & B M BOWDEN & SONS PTY LTD v DOUGHTY Judgment 1 GILES JA: The respondent was employed by the appellant as an orchard hand. He was injured when a tractor he was driving in the course of his employment rolled over. The issue in the appeal is whether Chapter 5 of the Motor Accidents Compensation Act 1999 ("the Act") applied to the award of damages in respect of his injury. If it did not, his damages should have been a significantly lesser sum assessed as modified common law damages under Division 3 of the Workers Compensation Act 1987. 2 The appellant conducted orchards on two properties some five kilometres apart. The respondent's duties included driving a tractor on and between the properties. The tractor was equipped with a roll bar as protection to the driver if it rolled over. The roll bar could be raised and lowered. The respondent was instructed that it should be kept lowered at all times when driving on the properties, since if raised it knocked too much fruit from the trees, and that it should be raised only when driving on the public road between the properties. He obeyed the instruction. 3 On the day of his injury the respondent was driving the tractor between blocks on one of the properties, moving bins for the fruit pickers. On one of the trips his path took him across a fairly steeply sloping paddock and through a gap in a fence, then to turn to the right to go uphill. He was travelling at two or three kilometres per hour. As he turned to go uphill the right front wheel of the tractor lifted, and then the right rear wheel. The tractor rolled over, partly on the respondent. Had the roll bar been raised, it would not have rolled on him. 4 It was not suggested that the respondent was at fault in his handling of the tractor. 5 Section 122(1) of the Act provides - "(1) This Chapter [Chapter 5] applies to and in respect of an award of damages which relates to the death of or injury to a person caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle." 6 "Fault" is defined to mean negligence or any other tort. At the relevant time para (a) in the definition of "injury" in s 3 of the Act provided - " injury : (a) means personal or bodily injury caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle if, and only if, the injury is a result of and is caused during: (i) the driving of the vehicle, or (ii) a collision, or action taken to avoid a collision, with the vehicle, or (iii) the vehicle's running out of control, or (iv) such use or operation by a defect in the vehicle, … " 7 The tractor was a motor vehicle within the Act. The appellant was its owner, and in general terms fault on its part was not in issue. The respondent relied on sub-paras (i) and (iii) of para (a) in the definition of "injury". Accordingly, the questions were (a) whether the injury to the respondent was caused by the fault of the appellant "in the use or operation of" the tractor; and (b) whether the injury was "a result of and … caused during" either the driving of the tractor or the tractor's running out of control. 8 The trial judge held in the respondent's favour on both questions, as to the second question on the basis of the driving of the tractor or alternatively the tractor's running out of control. The answer to the second question was not in dispute on appeal. The appeal was concerned whether the respondent's injury was caused by the fault of the appellant "in the use or operation of" the tractor. 9 The trial judge said that he had been referred to the decisions of the High Court in Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; (2005) 221 CLR 568 ("Allianz') and Nominal Defendant v GLG Australia Pty Ltd [2006] HCA 11; (2006) 228 CLR 529 ("GLG"). The relevant provisions, s 69(1) and the definition of "injury" in s 3(1) the Motor Accidents Act 1988 ("the 1988 Act"), were materially the same as those in the Act. His Honour said that the facts in each of the cases were distinguishable from the facts in the present case, but that "the principles disclosed in these cases" could readily be applied to the Act. 10 His Honour did not, however, articulate the principles, or clearly explain how their application brought him to satisfaction that the respondent's injury was caused by the appellant's fault in the use or operation of the tractor. His reasons for that satisfaction are, I think, to be found in the passages in his judgment - "I accept that the plaintiff was instructed by the defendant to lower the rollbar when driving the tractor in the orchard. I infer that the defendant was aware that disengagement of a safety device of that nature exposed the plaintiff to the unnecessary and real risk of injury which regrettably eventuated. I am satisfied that had the rollbar been in position, as it ought to have been in accordance with the defendant's duty to the plaintiff, the injury to the plaintiff would not have occurred.

The defendant's instructions to lower the rollover device was only directed to the driving of the vehicle. When the plaintiff parked the vehicle in the shed at the end of the day it was of no concern to the defendant if the rollover bar was raised or not. The instruction of the defendant was to lower it during the driving of the tractor so that the fruit trees would not be damaged." . 11 The thrust of the submissions on appeal may be shortly stated; they were of course helpfully developed. 12 The appellant submitted that the relevant use or operation of the tractor was its being driven, and that there was no fault on its part in the driving, let alone any fault on its part causative of the respondent's injury. It said that the case was governed by GLG, where it was held that the causative fault lay "in designing and implementing a system of work that involved driving the vehicle in the manner in which it was driven" (at [27] per Gleeson CJ and Gummow, Hayne and Heydon JJ). 13 The respondent submitted that there was fault of the appellant in negligently instructing and permitting the respondent to drive the tractor with the roll bar lowered, and, relying in particular on the judgment of McHugh J in Allianz, that the fault was in relation to the driving of the tractor and so in its use or operation. 14 In Allianz the worker was injured when unloading containers manually because the mechanical unloading system of his employer's truck was inoperative. The owner's fault in instructing the manual unloading was conceded, as was that the fault was in the use or operation of the truck. The dispute was over causation from a defect in the truck within subpara (iv) of para (a) of the definition of "injury". It was held that the cause of the injury was not the defect in the truck, but instructing that it be manually unloaded. 15 Three judgments were delivered. McHugh J considered that, on causation principles informed by the subject, scope and objects of the 1988 Act, the negligent instruction was decisive and the fact that the truck's unloading system was inoperative was only one of the "myriad of background facts that had to exist for the injury to occur" (at [59]). Gummow, Hayne and Heydon JJ said in a joint judgment that the instruction had "a predominant quality for, and an immediacy to, [the worker's] injury" (at [103]). Callinan J said that by the time of the injury the part played by the inoperative system was spent and it was "[r]ealistically, and rationally an industrial accident" (at [129]). 16 Although it was conceded, McHugh J gave some consideration to fault in the use or operation of a vehicle. His Honour saw this part of the definition of "injury" as causation "from the point of view of a human actor" (at [19]), and his reasons included - " [21] Santow JA took the view that the word 'in', in the expression 'in the use or operation of the vehicle', simply meant 'in relation to' or 'in the course of". This construction is correct because the words focus on the fault of the owner in its capacity as owner. Failure by the owner to fix the defective unloading mechanism satisfies this requirement, as would a direction to use an unsafe system of work to unload the vehicle.

[22] In the Court of Appeal, GSF also conceded that the injury was caused by the fault of the owner of the vehicle in the use or operation of the vehicle. As Davies AJA observed: The vehicle ought not to have been used to transport the employer's goods whilst its unloading mechanism, the T-bar, was inoperable. The employer's goods were too heavy to be moved manually without a risk of injury of the type which Mr Oliver suffered." 17 His Honour later said -

"[56] As I earlier pointed out, the definition of 'injury' in s 3(1) of the Act contains a triple causation requirement. All requirements must be satisfied for the Act to apply. The first aspect (whether the injury was caused by the fault of the owner in the use or operation of the vehicle) is satisfied in the present case. It is satisfied because GSF failed to maintain the vehicle and negligently instructed its employees to unload the vehicle despite the vehicle's unloading mechanism being out of operation." 18 The other members of the Court did not adopt these observations. Their Honours did not consider fault in the use or operation of a vehicle, although at [89] Gummow, Hayne and Heydon JJ regarded the words "such use or operation" appearing in subpara (iv) of para (a) of the definition of "injury" as added "to identify the activity during which the injury is sustained". As will be seen, this was taken up in GLG. 19 In GLG the worker was injured when vibrations from use of his employer's forklift unloading pallets from a container caused boxes in the container to fall on him. There was no fault in the driving of the forklift. It was held by majority (Gleeson CJ and Gummow, Hayne and Heydon JJ, Kirby J dissenting) that the injury was not caused by the fault of the owner of the forklift in its use or operation, but by the owner's failure as occupier to design and implement a safe system of work not involving driving the forklift with its generation of vibrations. 20 In the joint judgment of the majority it was said (at [26]) that "the relevant respect in which the vehicle was being operated was that it was being driven", with a footnoted reference to Allianz at [89]. Their Honours continued - " [27] It is true that the occupier was at fault. The fault, however, lay not in the use or operation of the forklift truck, namely, the driving of it. The occupier itself was not driving, nor was the driver it employed driving in a negligent way. The occupier's fault lay in designing and implementing a system of work that involved driving the vehicle in the manner in which it was driven, rather than devising and providing a reasonably safe system of unloading the containers which would not cause vibrations likely to destabilise the boxes being unloaded.

[29] The flaw in the occupier's contention that the words before "if, and only if" are to be broadly construed, while any qualification on the breadth of the definition of "injury" as a whole is to be found in the causative considerations appearing after "if, and only if", is that the contention gives no weight to the word "in" in the expression "in the use or operation of the vehicle". As counsel for the occupier accepted, "in the use" here means with respect to, as a consequence of, or by reason of the use of the forklift truck in the circumstances. That in turn points to the need to examine fault in the actual use or operation of the forklift truck at the particular time and place of the injury, and excludes an inquiry that goes more widely to instances of fault in the planning which led to its deployment and which may have taken place at points of time and place remote from those of the injury." 21 Their Honours had at [23]-[25] taken from the joint judgment in Allianz that it "stressed the narrowing effect of the new language employed to define injury in the 1995 Act", a narrowing from what was described in Allianz at [101] as "previous overbroad interpretations of the CTP insurance legislation" with an object of "keeping premiums 'affordable' by containing 'the overall costs of the scheme within reasonable bounds'". The new definition of "injury" was introduced by the Motor Accidents Amendment Act 1995. Section 69(1) had been in the same terms prior to the new definition, but in GLG their Honours regarded its words "by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle" when repeated in the definition as part of the narrowing effect, saying at [30] that "[t]here is no reason to suppose that the narrowing effect of the 1995 Act was to be achieved only by the words after 'if, and only if' to the exclusion of those before." 22 The majority concluded -

"[31] The question is one of characterisation. The approach adopted by the joint judgment in Allianz Australia Insurance Ltd v GSF Australia Pty Ltd to the construction of the definition of "injury" introduced by the 1995 Act suggests that the facts of this case are to be characterised as revealing no fault on the part of the owner or driver of the forklift truck in its use or operation. On that ground the appeal must be allowed." 23 I do not think that the respondents can rely on the scope given by McHugh J in Allianz to "in" in the expression "in the use or operation of the vehicle". The majority in GLG said at [15] that, while the decision in Allianz was relevant, it was not directly in point, including because fault in the use or operation of the vehicle had been conceded. The consideration by McHugh J of fault in the use or operation of a vehicle was not relevantly mentioned. His Honour's view that the expression included a direction to use an unsafe system of work to unload the truck (at [21]), or negligent instruction to unload the truck despite its unloading mechanism being out of operation (at [56]), can not stand with the majority reasons, and the result, in GLG. 24 In GLG at [29] the majority gave "in" the meaning of "with respect to, as a consequence of, or by reason of the use of the forklift in the circumstances", at first sight similar to the meaning "in relation to" or "in the course of" given to the word by McHugh J. But there was then qualification. Their Honours regarded "in" as restrictive in the definition of "injury", just as much as "if, and only if", and expressed the restriction in the consequential need to examine fault in the actual use or operation of the forklift truck at the particular time and place of the injury. The actual use or operation of the forklift at the particular time and place of the injury was contrasted with antecedent events leading to the use and operation at that time and place. Their Honours returned at [30] to the "narrowing effect" of the definition of "injury" beyond the words "if, and only if". 25 However, nor is the present case on all fours with GLG. The tractor was equipped with rollover protection, which the appellant instructed should be kept lowered. In GLG the forklift was used in its ordinary state, and caused vibrations in ordinary use when using a ramp to gain access to the container. The tractor was used in a state in which it should not have been used, by direction of the appellant. Did that make a difference? 26 The respondent submitted that it did, putting essentially two arguments. 27 The first argument was that the definition of "injury" referred to fault "of the owner or driver" of a motor vehicle, and contemplated fault of the owner of a vehicle in relation to the manner in which it was driven, or the occurrence of a collision, or running out of control, although the owner was not the driver. The definition comprehended fault of the owner beyond fault (such as failure in maintenance) whereby there was a defect in the vehicle. If the tractor had rolled over because the respondent was instructed to use it although the brakes were defective, it was said, the definition would have been satisfied, and the respondent submitted that it would be "absurd" if the same result did not follow from instruction to use the tractor with the rollbar lowered. 28 The second argument returned to GLG. In GLG the majority went on to consider whether, if there had been fault of the owner or driver in the use or operation of the forklift, the injury would have been caused by that fault. They said - "33. ... On the assumptions which must be made in order to pursue this causation inquiry, the forklift truck was not only the predominant cause, but in a sense the sole cause, of the plaintiff's injury. Its generation of vibrations was proximate and immediate in both time and space. The matter can be tested by examining the position which would have arisen if the occupier had devised a system of work using the forklift truck, but with a device which prevented vibration; and if one day its employee, the driver, had negligently removed that device, so that vibration took place and injured the plaintiff in the manner in which he actually was injured. In that event there would have been "fault of the ... driver of a motor vehicle in the use or operation of the vehicle". And that fault could be said to have caused the injury during the driving of the vehicle. The removal of the anti-vibration device was a cause having a predominant, immediate and proximate character. That conclusion is not diluted or negated by the verbal device of describing what happened by interposing as many objects as possible between the forklift truck and the boxes which fell on the plaintiff as transmitters of the vibration." 29 The respondent took this up, and submitted that there would also have been fault of the owner of the forklift if it had removed the vibration-preventing device; and likewise if it had instructed the driver to remove the device. In each case, the respondent said, there would be fault in the actual use or operation of the forklift at the particular time and place of the injury, with the removal or the instruction directly resulting in the actual use or operation in a vibrating condition. So in the present case the appellant's instruction to keep the rollbar lowered when driving the tractor on the properties directly resulted in the actual use or operation of the tractor with the rollbar lowered at the time and place of his injury. 30 These arguments posed questions, and did not provide an answer to the question in the present case. Defective brakes through the owner's failure to maintain the tractor may have sufficed, but whether instruction to use the tractor although the brakes were defective would have sufficed is another matter. As to the passage from GLG, it did not follow from fault of the driver in the use or operation of the forklift that there would be fault of the owner in its use or operation if the system of work put in place by it as employer included that the vibration-preventing device should not be used. Fault of the owner would not be consistent with the characterisation at which their Honours had earlier arrived. 31 As GLG instructs. it is a question of characterisation. That which is to be characterised is the owner's fault: is it "in" the use or operation of the vehicle or, in a case such as GLG or the present case, "in" the system of work put in place by an employer who is also the vehicle's owner? There is no universal answer. In the present case, the latter characterisation is to be preferred. 32 The actual use or operation of the tractor at the time and place of the respondent's injury was driving it. It was being driven with the rollbar lowered, but that was not an element in the way it was being driven (eg its speed, on a slope turning uphill). Nor was it anything to do with how it came to roll over. The tractor was just as stable or unstable on a slope with the rollbar lowered - it was not like defective brakes causing the tractor to run out of control and roll over. 33 The instruction to drive within the properties with the rollbar lowered was given when the respondent began his employment with the appellant, and by the appellant as his employer. That was the essential fault of the appellant, a fault in implementing a system of work which in that respect it put in place for the commercial consideration that fruit should not be knocked from the trees. The fault continued as the system of work was continued, but that did not affect its nature. In characterisation for the purposes of "in the use or operation of the vehicle", the fault was distant from the occasion of driving the tractor, and was a breach of the appellant's duty of care owed to the respondent as its employee through negligently instructing how he was to carry out his duties. In my opinion, it was not fault in the use or operation of the tractor within s 122(1) of the Act and para (a) of the definition of "injury". 34 The appellant referred to Brambles Australia Ltd v Sandy [2006] NSWCA 357; (2006) 47 MVR 207, in which this Court (Handley, Giles and McColl JJA) applied GLG in holding (at [63]) that the fault of the owner/employer in failing to provide conditions in which a tipping trailer could safely be used was not fault in the use or operation of the vehicle. This case also is not on all fours with the present case, but the result is consistent with the conclusion to which I have come. In Toll Pty Ltd v Dakic [2006] NSWCA 58 Santow JA regarded an injury from an unsafe mode of lifting a loading ramp as caused by an unsafe system of work rather than by a defect in the vehicle in its use or operation, observing at [92] that it was not caused "by the fault of the owner qua owner"; this can be seen as a characterisation of the use or operation. We were not referred to other decisions in point since GLG, although in a number of other cases the "narrowing effect" approach established by Allianz has been applied, see Portlock v Baulderstone Hornibrook Engineering Pty Ltd [2005] NSWSC 775; Inasmuch Community Inc v Bright [2006] NSWCA 99; Walfertan Processors Pty Ltd v Dever [2006] NSWCA 289; Hooker v Gilling [2007] NSWCA 99. 35 It was agreed that, if the appeal were allowed, there should be substituted judgment for the sum for which the respondent would have obtained judgment had his damages been assessed as modified common law damages. It was not suggested that the costs order below should be displaced. 36 I propose the orders -

Set aside the verdict and judgment for the respondent for $535,198 and in lieu thereof verdict and judgment for $278,628.

Respondent to pay appellant's costs of the appeal and to have a certificate under the Suitors Fund Act if otherwise qualified. 37 HANDLEY AJA: In this appeal I have had the benefit of reading the judgments of Giles JA and Sackville AJA in draft. Their reasons demonstrate the difficulty in applying the definition of injury in the Motor Accidents Compensation Act 1999, and identifying the boundary between a motor accident covered by that Act in its original form, and what may be described as an industrial accident in which a motor vehicle is involved. Giles JA has set out the relevant facts and the history of the matter and there is no need for me to go over the same ground. 38 The key definition for present purposes is that of injury in s 3 which relevantly provided that it means: "… bodily injury caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle if, and only if, the injury is a result of and is caused during: (i) the driving of the vehicle …" 39 The critical words for present purposes are "fault of the owner … in the use or operation of the vehicle." The driver was not himself at fault and the other requirements of the definition were satisfied. The respondent's injury occurred during the driving of the vehicle, and as a result of that driving. 40 The relevant guidance for this Court is that provided by Nominal Defendant v GLG Australia Pty Ltd [2006] HCA 11, 228 CLR 529. 41 In that case the driving of a forklift truck on a ramp in a warehouse caused heavy boxes stacked in a container to fall and injure the plaintiff. The system of work devised by the occupier was negligent, but its forklift had not been driven in a negligent manner. The majority held that the injury had not been caused by the fault of the owner in the use or operation of the forklift. 42 The reasoning of the majority on this question is summed up in the following passages from the joint reasons at pp 540, 541: "It is true that the occupier was at fault. The fault, however, lay not in the use or operation of a forklift truck, namely the driving of it. The occupier itself was not driving, nor was the driver it employed driving in a negligent way. The occupier's fault lay in designing and implementing a system of work that involved driving the vehicle in the manner in which it was driven … The flaw in the occupier's contention … is that [it] gives no weight to the word 'in' in the expression 'in the use or operation of the vehicle'. … That … points to the need to examine fault in the actual use or operation of the forklift truck at the particular time and place of the injury, and excludes an inquiry that goes more widely to instances of fault in the planning which led to its deployment and which may have taken place at points of time and place remote from those of the injury." 43 There is also an inclusive definition of "use or operation" in s 3, but its only relevance is to include the vehicle's maintenance within the defined meaning. The position of the roll bar at the time was not a result of the maintenance of the vehicle, or a relevant use of the vehicle. In my judgment its only relevant use was for driving. The owner was not the driver and his instruction about the position of the roll bar was remote in time and place from the accident. 44 Thus in my judgment the fault of the owner in this case was not in its "actual use or operation" of the tractor at the time, namely the driving. It follows that I agree with Giles JA and with the orders that he has proposed.

45 SACKVILLE AJA:: I gratefully adopt Giles JA's statement of the facts and of the relevant statutory provisions. 46 The only issue on the appeal is whether the injuries sustained by the respondent were caused by the fault of the owner of the tractor "in the use or operation of the tractor". The quoted expression was used, at the relevant times, in s 122 of the Motor Accidents Compensation Act 1999 (NSW) ("MACA Act") and in the definition of 'injury" in s 3 of the MACA Act. Both provisions are set out in the judgment of Giles JA. 47 On the findings made by the primary Judge, the fault of the owner consisted of instructing the respondent to lower the roll bar when driving the tractor in the orchard. Had the roll bar been in position, so his Honour found, the injury to the respondent would not have occurred. 48 In Allianz Australia Insurance Ltd v GSF Australia Pty Ltd (2005) 221 CLR 568 ("Allianz"), the facts of which have been referred to by Giles JA, the employer conceded that the employee's injuries had been caused by the fault of the owner in the use or operation of the vehicle (in that case, a truck modified to facilitate the unloading of airline containers): at 595 [87]. It was therefore not strictly necessary for the Court to consider the meaning of the introductory words in the definition of "injury": in s 3 of the MACA Act viz "injury caused by the fault of the owner … of a motor vehicle in the use or operation of the vehicle". 49 The joint judgment of Gummow, Hayne and Heydon JJ in Allianz did not address the construction of the introductory words. However, their Honours said that the "evident purpose" of the 1995 amending legislation (which inserted the new definition of "injury" into the Motor Accidents Act 1988 (NSW)) was: "to limit the definition of injury by its cause and to narrow what the legislature considered the overbroad reading in the case law of the expression in s 69 [of the Motor Accidents Act 1988 (NSW)] caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle". 50 Only McHugh J considered what he described as "the first aspect of causation". His Honour divided (at 576 [19]) the relevant part of the definition of "injury" ("caused by the fault of the owner … in the use or operation of the vehicle") into three component parts: · there must be fault of the owner; · that fault must be in the use or operation of the vehicle; and · the injury must be "caused by" the fault of the owner in that use or operation. 51 McHugh J expressly accepted (at 576 [21]) that the word "in" when used as part of the expression "in the use or operation of the vehicle", simply means "in relation to" or "in the course of". His Honour thought this construction to be correct because: "the words focus on the fault of the owner in its capacity of owner. Failure by the owner to fix the defective unloading mechanism satisfies this requirement, as would a direction to use an unsafe system of work to unload the vehicle ". (Emphasis added.) 52 Later in his judgment (at 587 [56]), McHugh J concluded that the first aspect of the definition had been satisfied on the facts because: "GSF failed to maintain the vehicle and negligently instructed its employees to unload the vehicle despite the vehicle's unloading mechanism being out of operation". (Emphasis added.) 53 McHugh J appears to have adopted a broad interpretation of "the first aspect of causation" incorporated in the definition of "injury". However, a narrower view was taken by the majority in Nominal Defendant v GLG Australia Pty Ltd (2006) 228 CLR 529 ("GLG"), although without any express reference to McHugh J's analysis. It will be recalled that in GLG the warehouse occupier devised a system for unloading goods from a container which involved a forklift truck going up a ramp to collect a pallet and then reversing down the ramp. An accident occurred inside the container when heavy boxes were dislodged because of vibrations generated by the movement of the forklift truck. 54 In GLG, Gleeson CJ, Gummow, Hayne and Heydon JJ pointed out (at 540 [25]) that the joint judgment in Allianz had "stressed the narrowing effect of the new language employed to define 'injury' in the 1995 Act". Their Honours continued (at 540-541 [27], [29]): "27 It is true that the occupier was at fault. The fault, however, lay not in the use or operation of the forklift truck, namely, the driving of it . The occupier itself was not driving, nor was the driver it employed driving in a negligent way. The occupier's fault lay in designing and implementing a system of work that involved driving the vehicle in the manner in which it was driven, rather than devising and providing a reasonably safe system of unloading the containers which would not cause vibrations likely to destabilise the boxes being unloaded. … 29 The flaw in the occupier's contention that the words before 'if, and only if' are to be broadly construed, while any qualification on the breadth of the definition of 'injury' as a whole is to be found in the causative considerations appearing after 'if, and only if', is that the contention gives no weight to the word 'in' in the expression 'in the use or operation of the vehicle'. As counsel for the occupier accepted, 'in the use' here means with respect to , as a consequence of, or by reason of the use of the forklift truck in the circumstances. That is turn points to the need to examine fault in the actual use or operation of the forklift truck at the particular time and place of the injury, and excludes an inquiry that goes more widely to instances of fault in the planning which led to its deployment and which may have taken place at points of time and place remote from those of the injury." (Emphasis added.) 55 The joint judgment in GLG appears (at [27]) to equate the "use or operation" of the forklift truck with the "driving of it". The joint judgment also emphasises (at [29]) the limiting effect of the word "in", when employed as part of the expression "in the use or operation of the vehicle". Nonetheless, their Honours seem to give "in" a broad meaning, interpreting the expression "in the use of" to mean "with respect to … the use of" the motor vehicle. It would appear to follow that the expression "fault of the owner … in the use or operation of the vehicle" embraces the fault of the owner with respect to the use or operation of the vehicle. However, their Honours then say, apparently by way of qualification, that the expression "in the use of" points to the need to examine fault "in the actual use or operation of the forklift truck at the particular time and place of the injury". 56 If I may say so with respect, it is not entirely easy to reconcile all aspects of this reasoning. But the language employed in the joint judgment must be understood by reference to the facts of the case. As their Honours observed (at 541 [31]), the question they faced was one of "characterisation". In resolving this question, they were concerned to distinguish between "fault in the actual use of operation of the forklift at the particular time and place of the injury" and fault by the employer in planning a system of work which led to the deployment of the forklift truck and "which may have taken place at points of time and place remote from those of the injury". 57 The system of work set up by the employer in GLG required the deployment of a forklift truck to assist in unloading the contents of a container. The fault did not lie in creating a situation in which the use or operation of the forklift truck created a particular risk of harm to the operator or to anyone coming in contact with the forklift truck or its contents. The employer's fault in GLG lay in setting up a system in which the forklift truck generated vibrations which dislodged heavy boxes within the container. Presumably any other piece of machinery moving up and down the ramp would have created a similar risk. 58 I do not read the joint judgment in GLG as holding that the "first aspect of causation" in the definition of "injury" can never be satisfied if the employer's fault consists in an act or omission which occurs before the employee is actually injured and at a place other than the place where the injury actually occurs. In the present case, Mr McPherson, on behalf of the appellant, instructed the respondent as to the use of the roll bar early in the respondent's employment. As it happens, Mr McPherson saw the respondent on the day of the accident as he drove from the machinery shed with the roll bar down in accordance with the instructions, but did not countermand his earlier instructions. 59 It seems to me that the important feature of the present case is that the appellant, through Mr McPherson, instructed the respondent not to utilise a critical safety feature of the tractor itself in the course of its ordinary operations. The instruction (and the continuing failure to countermand it) created an unjustified risk of injury to the respondent as the user of the tractor. The appellant's "fault" (that is, the instruction not to engage the roll bar) made the use of the tractor inherently unsafe for any operator (or passenger) and for the respondent in particular. In short, the respondent's instruction and the failure to countermand it went to the manner in which the tractor was to be used or operated as a tractor and necessarily made the use of the tractor hazardous to the operator. I accept, as Giles JA points out, that the positioning of the roll bar did not contribute to the accident. But the positioning of the roll bar made the use or operation of the tractor inherently hazardous and exposed the operator to the risk of more severe injury if an accident occurred while the tractor was being used or operated in the usual way. 60 In my opinion, the appellant's injury can and should be characterised as having been caused by the fault of the owner in the use or operation of the vehicle. The appellant's fault was with respect to the use of the tractor at the particular time and place of the injury since the instruction not to use the roll bar remained in force at the time the respondent was injured. The instruction exposed the respondent, as the operator of the tractor, to a greater risk of injury in the course of the ordinary use and operation of the tractor. While the instruction did not cause the accident, it caused the operator to suffer serious injuries in consequence of his use and operation of the tractor. 61 This conclusion is consistent with the 1995 amendments having had the purpose and effect of narrowing the scope of the legislation. One of the decisions which prompted the amendments was NRMA Insurance Ltd v NSW Grain Corporation (1995) 22 MVR 317. There the plaintiff was injured in the course of his employment while unloading a grain silo from a trailer attached to a truck. The elevator toppled from the bucket of a bobcat being used to pull the elevator off the rear of the trailer. Clarke JA (with whom Priestley and Powell JJA agreed) held that the causative fault was "in the use or operation of the vehicle [the trailer]". In his Honour's opinion, it was enough that the carriage of goods was a use of the trailer and that the loading and unloading of the trailer was incidental to that use (at 321). 62 In view of the decision in GLG, NRMA v Grain Corporation would now be decided differently. The employer was not at fault with respect to the actual use or operation of the trailer. The fault lay in the defective system for unloading the silo. The trailer happened to be involved in the process, since it had been used as the means of transport of the silo. But the ordinary use of the trailer of itself created no particular hazard for the plaintiff. The employer's fault was not "in the use or operation of the vehicle" as that expression was construed in GLG. 63 In Mercantile Mutual Insurance (Aust) Ltd v Moulding (1995) 22 MVR 325, the plaintiff was seriously injured when a rifle discharged in the cabin of her employer's utility and she was hit by a bullet. The plaintiff had been loading a lamb into the cabin of the utility at her employer's direction. The employer had left a loaded rifle in the cabin and neglected to warn the plaintiff of the danger. For much the same reasons as NRMA v Grain Corporation would now be decided differently, so Moulding would now be decided differently. 64 In my view, the appeal should be dismissed, with costs. **********

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Cases Cited (13)