Portlock v Baulderstone Hornibrook Engineering Pty Limited & Ors

Motor Accidents Compensation Act 1999 Occupational Health and Safety Act 1983 LEGISLATION CITED : Road Transport (Vehicle Registration) Act 1997 Supreme Court Rules - Pt31 r2 Workers Compensation Act 1987

Allianz Australia Insurance Ltd v GSF Australia Pty Limited [2005] HCA 26 Elb v Nominal Defendant; Morgan Cars Pty Limited (1972) 1 NSWLR 580 Havas v Standard Knitting Mills Pty Limited (2001) 52 NSWLR 293 Insurance Commission of Western Australia v Container Handlers Pty Limited (2004) 78ALJR 821 CASES CITED : Mercantile Mutual Insurance Australia Ltd v AAMI Limited (1999) 29 MVR 393 NRMA Insurance Ltd v NSW Grain Corporation (1995) 22 MVR 317 Pender v Power Coal [2002] NSWSC 925 QBE Insurance (Australia) Limited v Smith [2005] NSWCA 130

Patrick John Portlock - Plaintiff Baulderstone Hornibrook Engineering Pty Limited - First Defendant PARTIES : Baulderstone Hornibrook Pty Limited - Second Defendant Allianz Australia Insurance Limited - Third Defendant

AJ BartleySC/D Toomey - Plaintiff COUNSEL : Ms LP McFee - First and Second Defendants Mr SG Campbell SC/A Capelin - Third defendant

Slater & Gordon - Plaintiff SOLICITORS : Hunt & Hunt - First and Second Defendants TL lawyers - Third Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

20946/01 - Patrick PORTLOCK v BAULDERSTONE HORNIBROOK ENGINEERING PTY LIMITED & 2 Ors

JUDGMENT 1 HIS HONOUR: General Background On 23 November 2001 the plaintiff commenced proceedings against the first and second defendants. In para 2 of the Statement of Claim he asserted: "At all material times the plaintiff was employed by the first and/or second defendants as a mobile crane driver and working in that capacity." 2 The incident relied upon in the Statement of Claim occurred on 12 January 2001. On that occasion the plaintiff was operating a mobile crane to remove steel shutters from the side of a concrete bridge. The crane tipped over and the plaintiff suffered severe injuries, including a right leg amputation below the knee. 3 The particulars of negligence relied upon were: "(a) Failing to devise implement and maintain a safe system of work. (b) Failure to provide safe and suitable plant and equipment. (c) Failing to provide proper directions and instructions. (d) Directing the plaintiff to use the mobile crane without outriggers. (e) Failing to ensure that the crane was safe and suitable for the task that the plaintiff was directed to perform. (f) Failing to maintain and service the crane so that it was safe and did not present an unreasonable risk to the plaintiff." 4 On 5 June 2002 a Defence was filed on behalf of the first defendant. In that Defence the first defendant admitted that it was the employer of the plaintiff and denied that the plaintiff was employed by the second defendant. No Defence was filed by the second defendant. 5 The matter was fixed for hearing before Studdert J on 19 July 2004. Until that date it had proceeded in the conventional way as a claim by an employee against his employer. In the course of preparing the matter, the plaintiff had given notice to the first defendant that in addition to the particulars of negligence already referred to he would also be relying upon a defect in the braking system of the crane and a defect in the Load Moment Indicator (LMI). 6 The matter did not commence before Studdert J because the first defendant foreshadowed a motion to strike out the Statement of Claim. The basis for that strike out application was the decision in Pender v Power Coal [2002] NSWSC 925 in that the circumstances of the accident brought it within the ambit of the Motor Accidents Compensation Act 1999 (the Act) and consequently the plaintiff had to comply with the mandatory procedural requirements of the Act in default of which the Statement of Claim would be struck out. 7 This may not have come as a complete surprise to the plaintiff's legal advisors in that for greater safety, they had completed a motor accident claim form and had served it on the CTP insurer of the crane (the third defendant). Apart from taking that precaution, the plaintiff's legal advisers had dealt with the matter as an industrial accident governed by the provisions of the Workers Compensation Act 1987. 8 The motion which had been foreshadowed when the matter came before Studdert J was filed on 19 July 2004. It came on for hearing before Bell J on 31 January 2005. As indicated the motion sought orders that the Statement of Claim be struck out because it failed to comply with ss70 and 108 of the Act. 9 The matter was unable to proceed before Bell J because for the first time the court was told that the second defendant, and not the first defendant, was the employer of the plaintiff. Accordingly, it would be necessary for the first defendant to seek leave to withdraw the admission in its Defence and to amend that Defence. It would also be necessary for the second defendant to file a Defence admitting employment of the plaintiff. 10 It is apparent from the submissions made to her Honour that the motion before her did not have any prospects of success unless the second defendant was found to be the employer because it was only the second defendant which was in a position to argue that it was the owner of the crane. In those circumstances, her Honour dismissed the first defendant's motion with costs. 11 It is against that background that the present two motions came before me. The first motion is brought by the first and second defendants. The first defendant seeks leave to withdraw its admission of employment and seeks leave to file an Amended Defence, which would deny employment. The second defendant seeks leave to file its Defence out of time and to raise in its Defence that it was the employer and to further raise in its defence the proposition that the claim is governed by the Act and its reliance upon ss70 and 108 of the Act. 12 The second motion has also been brought by the first and second defendants. It seeks an order that pursuant to Pt 31 of the Rules, two questions be separately determined before the primary proceedings are dealt with. The two questions are: "(a) A determination of the ownership on 12 January 2001 of a Grove 25 tonne rough terrain crane registered No WJL 622. (b) A determination that the circumstances of the plaintiff's injury on 12 January 2001 were such that any claim made by the plaintiff is governed by the Motor Accidents Compensation Act 1999." 13 The third defendant was joined to the proceedings on its own application pursuant to s79 of the Act as the CTP insurer of the mobile crane. It joined with the plaintiff in opposing the orders sought in the motions. 14 Initially the only matter before me was the first motion. Insofar as the second motion was concerned, the parties indicated they were not in a position to argue the substantive issues but sought an order under Pt 31 of the Rules for those two questions to be separately determined. 15 The hearing of the first motion took place on 29 and 30 June 2005. The evidence covered the following: the identity of the plaintiff's employer, the reason why an incorrect admission had been made in the first defendant's defence and the ownership of the mobile crane as of 12 January 2001. 16 Before submissions were made, the parties asked that the further hearing of the first motion be adjourned pending a decision in relation to the two substantive orders sought in the second motion. The parties jointly requested that the questions raised by the second motion be separately determined pursuant to Pt 31 of the Rules. 17 In accordance with that request I made an order pursuant to Pt 31 r 2 to that effect and stood over the hearing of the second motion to 27 July 2005. The first motion was adjourned to the same date. 18 When the matter came before me on 27 July 2005 the parties relied upon the same evidence, which was before the Court on 29-30 June. Further documents were tendered. In particular a document entitled "Agreed Statement of Facts" which had been used in proceedings before the Industrial Relations Commission in matter No IRC 7301 of 2002 was tendered (Exhibit 11). This was a prosecution of the second defendant under s15(1) of the Occupational Health and Safety Act 1983. The parties agreed that I could rely upon the matters in that Agreed Statement of Facts as having been established in these proceedings. The second defendant agreed that it had pleaded guilty to that charge.

Factual Background 19 As of 12 January 2001 the second defendant was the employer of the plaintiff. It was also the owner in law of the mobile crane. I will expand on that latter aspect when considering the first question in the second notice of motion. 20 On 26 August 1998 the first defendant and Bilfinger and Berger Bauaktiengesellhsaft (BBB) formed an unincorporated joint venture referred to as the BHBBM5 East Joint Venture (the joint venture). The joint venture was contracted by the Roads and Traffic Authority of NSW (RTA) to undertake the construction of the M5 East Motorway. The second defendant provided equipment and labour for the construction of the motorway. It was in this context that the plaintiff came to be operating the mobile crane on 12 January 2001. 21 The construction of the motorway included the installation of concrete barriers at the edge of elevated sections of the motorway. This involved the use of formwork and metal shutters. After construction of the concrete barriers, the shutters were removed by a crane. It was while carrying out this activity that the plaintiff was injured. The crane was intended to be stationary while it was lifting and moving a shutter. 22 The crane involved in the accident was a Grove 25 Tonne rough terrain crane identified in the records of the second defendant as Asset No 110509 (hereinafter referred to as "the crane"). It was powered by its own motor and was able to travel on public roads. For any lift the mobile crane had three settings. Depending on the nature of the lift and the conditions, the crane driver was required to select one of the following settings.

(i) "On outriggers". (ii) "On rubber stationary". (iii) "On rubber crane moving". 23 The "on outriggers" setting involved the crane undertaking a lift whilst stationary and supported not by its wheels, but by outriggers. The "on rubber stationary" setting involved the crane undertaking a lift on and supported by, its rubber tyres without the support of outriggers and whilst the crane was in a stationary position with the ability to rotate the load and boom 360 degrees. The "on rubber crane moving" setting involved the crane undertaking a lift and travelling on its rubber tyres with the load suspended and the outriggers retracted. 24 The crane driver was able to change the crane's settings by entering a four-digit code into the crane's computer known as a "Load Moment Indicator" (LMI). The LMI is an electro-mechanical sensing system. It is designed to assist the crane driver by displaying the maximum load and actual load for the operating code entered and the crane's configuration. If the crane driver has entered an incorrect setting, or other incorrect information about the configuration of the crane, then the LMI may give the operator an incorrect assessment about the maximum load which the crane can lift. 25 When an overload condition is sensed by the LMI, it will alert the crane driver of this by triggering a visual and audible warning. The controls will then be locked so as to prevent the crane driver from increasing the load conditions for that particular lift. The LMI is located in the cabin of the mobile crane and has a display screen, which is located on the dashboard of the crane. 26 The safety features and operating instructions for the LMI were contained in the operator's handbook, which in this case was located in the cabin of the mobile crane. The handbook relevantly stated as follows: Page 2 - "The display will only aid the operator when the LMI is properly programmed and the proper load capacity chart and operating code are selected for the crane configuration being utilised. To prevent property damage or serious bodily injury or death to personnel, ensure the LMI is properly programmed before operating the crane." and

Page 14 - "The correct setting is of utmost importance for the proper function of the system and the crane. Therefore only operators who are thoroughly familiar with the crane load capacity charts and the use and operation of the system shall set the operating code switch." and Page 29 - "Failure to properly program the LMI with the correct operating code may result in property damage or serious bodily injury or death to personnel. To assure the crane is properly programmed, verify that the operating code and the load capacity chart match the lifting configuration of the crane." 27 Importantly if the crane driver entered an incorrect setting into the LMI, the crane was not able to detect this. For example, if the crane driver entered the setting "on outriggers" but then worked "on rubber", the crane did not have any inbuilt sensor mechanism or "intelligence" which could determine that the outriggers were not engaged. As of 12 January 2001 the technology, which could detect whether the crane driver had entered the correct setting was not readily available for cranes of the capacity of the mobile crane. 28 The plaintiff had been employed by the second defendant since 26 February 1986. He had over thirty years' experience in the crane driving and rigging industry. He was the holder of an open class mobile crane certificate of competency and a rigger's class 1 certificate of competency. 29 The plaintiff had been given a brief rundown on how to operate the mobile crane by its previous operator, Rodney Leworthy, another employee of the second defendant. The plaintiff had operated the mobile crane continuously for approximately four months before 12 January 2001 and prior to that on "odd occasions". 30 Almost all modern cranes are fitted with a computer system similar to the LMI used in the crane and the plaintiff was familiar with the use of alternative but similar computers in other cranes. The plaintiff told Workcover investigators that he was reasonably familiar with the handbook and that he felt quite comfortable when operating the mobile crane. 31 The plaintiff had used the mobile crane to lift shutters on approximately six - eight occasions before 12 January 2001. On each occasion the lift was undertaken from the elevated section of the motorway "on rubber stationary", ie without using outriggers. The plaintiff could not recall what operating code he entered into the LMI on these previous lifts. All the shutters were essentially the same size and same weight. 32 At 7.30 am on 12 January 2001 the plaintiff commenced work on an elevated section of the motorway at Span 3, General Holmes Drive Viaduct, which was a section approximately four or five metres above ground level. Span 3 formed part of the bridge deck over the Cooks River crossing. A concrete barrier was being constructed at the outer edge of the elevated section of the bridge deck. The plaintiff intended to lift and relocate a shutter associated with that concrete barrier. 33 The plaintiff had decided not to undertake the lift from ground level as he considered it would block access to the earthworks area. It was for this reason that the lift was undertaken from the elevated roadway. In preparation for the lift the crane was parked beside the edge of the concrete barrier where the shutter being relocated was attached. At this location on the motorway there was a vertical incline of six degrees and a cross-fall of three degrees. 34 The plaintiff was not advised of the weight of the shutter which was to be lifted. The plaintiff said that when he looked at the LMI it displayed a weight of 2.8 tonne. In fact the shutter weighed 4.560 tonne (excluding the lifting chain and the hook which was attached to the shutter at the time of the accident). This discrepancy has not been explained. It may be accounted for by the incorrect setting of the LMI. The LMI was calibrated shortly before the incident and there is no evidence that the LMI was faulty. 35 Before commencing the lift, the plaintiff had entered the "on outriggers" setting into the LMI. This was despite the fact that he intended to use the mobile crane "on rubber stationary". The plaintiff had been directed not to use outriggers when the crane was positioned on the roadway because of the risk that the road surface would be damaged. 36 The plaintiff commenced operating the crane at approximately 8 am. The crane had been set up for the lift to be conducted over the left side of the crane to minimise the radius of the lift. As indicated the physical configuration of the crane was "on rubber". After the shutter had been secured to the chains the plaintiff commenced to lower the shutter towards the earthwork area below the bridge. As the crane took the weight of the shutter the plaintiff felt the crane lurch backwards twice. He took his foot off the slew brake and applied the park brake. The crane then tipped. The plaintiff tried to jump clear but was unable to do so and his leg became trapped. 37 Depending on the size of the tyres of the crane there were different Load Charts which needed to be consulted. This crane had 20.5 by 25 inch tyres. 38 According to the Load Charts for a crane with such tyres the rated capacity of the crane:

(i) In the "on rubber stationary" setting; (ii) For a jib length of 11.78 metres; and (iii) A radius lift of 6.1 metres (which was the configuration of the crane on 12 January 2001) was in the vicinity of 3.605 tonne. 39 According to the Load Charts the rated capacity of the crane:

(i) In the "on outriggers" setting (ii) For a jib length of 11.78 metres; and (iii) A radius lift of 6.1 metres was in the vicinity of 10.63 tonne. 40 The fact that the crane was being operated "on rubber" whilst the setting was "on outriggers" was inconsistent with the "on outrigger" setting which had been entered into the LMI. No explanation was provided by the plaintiff as to why he entered the "on outriggers" setting when in fact the outriggers were not engaged and he was intending to do the lift on rubber tyres. 41 Prior to the accident the second defendant carried out regular safety checks of the crane. These checks were conducted by the crane driver on an almost daily basis. After each safety check the crane driver completed a report to confirm that the crane was operating safely and whether any maintenance work was required. Safety reports for the crane were completed and signed off up to and including 10 January 2001. The park brake of the crane was independently checked after the accident and found to be fully functional. 42 From the expert reports of Messrs Harley and Fogg it is clear that because it was "on rubber", the crane was overloaded by approximately 26.6%. The fact that the crane is rated on a tipping load of 25% probably explains why the plaintiff was able to do the job on previous occasions. On those previous occasions the crane was probably close to tipping without the plaintiff realising it. 43 Both experts agreed that the LMI should not be used as a substitute for independently checking the weight of the load. Both experts agreed that the plaintiff was not provided with formal training and instruction in the use of the LMI.

Ownership of crane as of 12 January 2001 for purposes of Act 44 It seems clear that the reference to owner in s122 of the Act is a reference to that concept as defined in s4 of the Act and not a reference to the general law concept of ownership. (Elb v Nominal Defendant; Morgan Cars Pty Limited (1972) 1 NSWLR 580 at 586A). 45 Section 4 provides: "4(1) For the purpose of this Act: (a) In the case of a motor vehicle that is registered, the "owner" is: (i) Each registered operator of the vehicle within the meaning of the Road Transport (Vehicle Registration) Act 1997, unless the operator has sold or ceased to have possession of the vehicle; and (ii) Each person who, although not a registered operator of the vehicle, is a sole or joint owner of the vehicle, unless that person has sold or ceased to have possession of the vehicle; and (iii) If any such registered operator or owner has sold or ceased to have possession of the vehicle - any person who solely or jointly or in common with any other person is entitled to the immediate possession of the vehicle; …" 46 The provisions of s4(1) make it clear that the concept of "owner" has an extended meaning for the purposes of the Act and goes well beyond ordinary legal concepts of ownership. The fundamental concept seems to be lawful possession of the vehicle and not registration or legal title to it. This is apparent from the provisos to sub-paras 4(1)(a)(i) and (ii). 47 As of 12 January 2001 Baulderstone Hornibrook Asset Management Pty Limited (hereinafter referred to as "Asset Management") was the registered operator of the crane within the meaning of the Road Transport (Vehicle Registration) Act 1997. Section 4 of that Act defines registered operator as a person recorded in the Register as a person responsible for the vehicle. Legal ownership or title is not necessary for that purpose. Why Asset Management was the registered operator at that time was never explained. 48 Mr Peter Valeontis, the National Plant Manager for the Baulderstone Hornibrook group, both in affidavits and in oral evidence, explained the meaning and effect of various documents relating to the crane. At one time legal title to the crane resided in Asset Management. At some time during 1998, as a result of a reorganisation within the group, legal title to the crane was transferred to the second defendant. Not only was this one of the agreed facts in Exhibit 11 but from 1998 the second defendant was paying for the maintenance of the crane, was receiving income from the use of the crane and ultimately received the proceeds from the disposal of the crane after the accident. 49 By the end of 1998 Asset Management was no longer in possession of the crane. Accordingly, subs 4(1)(a)(i) would not apply. 50 The first and second defendants submit that from the end of 1998 up to and including 12 January 2001 the second defendant, although not the registered operator of the crane, was the owner of it in accordance with s4(1)(a)(ii) of the Act. The proviso did not apply in that the second defendant had not ceased to have possession of the vehicle. 51 The first and second defendants accept that as of 12 January 2001 the crane was being used for the purposes of the first defendant in the joint venture and that the records of the group show substantial payments being made on a monthly basis by the first defendant to the second defendant for the "dry hire" of the crane. Mr Valeontis explained the concept of "dry hire" to mean the hiring out of the crane without a driver. 52 Despite these matters the second defendant stresses that as of 12 January 2001 the crane was being operated by an employee of the second defendant (ie the plaintiff) and that apart from the fact of the payment of money by the first defendant to the second defendant for the hire of the crane, there is no evidence of any other terms of that arrangement. It is submitted that at most the first defendant was a mere bailee at will of the crane and that for the purposes of the Act, the second defendant had actual possession. 53 The third defendant submits that for the purposes of the Act as interpreted in Havas v Standard Knitting Mills Pty Limited (2001) 52 NSWLR 293 the second defendant had ceased to have possession of the crane. Reliance is placed on the following evidence of Mr Valeontis: "Q. Can you tell me on the basis of the information you have got from the documents you have inspected, was it the case that Baulderstone Hornibrook Engineering Pty Limited had the crane under that dry hire for the whole duration of the M5 East project? A. Until the accident. Q. Until the accident is that a yes? A. Yes. They had the crane until the accident, yes". (T.7012-24) 54 It submits that the fact that the operator of the crane was an employee of the second defendant is not decisive. The second defendant provided labour to the joint venture under a separate agreement to that which related to the provision of the crane. The mere fact that an employee of the second defendant was operating the crane does not establish that as of 12 January 2001 the second defendant retained possession of the crane for the purposes of the Act. 55 It seems clear that from March 2000 until the date of the accident the crane was physically located at the M5 East project on dry hire to the first defendant. The first defendant was paying real money for the use of the crane in the project. The second defendant was not a subcontractor on the project in its own right. Its function was no more than to provide plant and labour to the first defendant for use in the project. The length of the period during which the crane was being used at the M5 East project would also exclude the operation of subsection 4(2)(a) of the Act. 56 I have concluded that as of 12 January 2001 the second defendant, although owner of the crane, had ceased to have possession of it. Accordingly s4(1)(a)(ii) does not apply. 57 This means that the determination of "owner" for the purposes of the Act will depend upon subs4(1)(a)(iii), ie what entity or entities were entitled to immediate possession of the crane as of 12 January 2001. 58 Although we do not know the terms of the arrangement whereby the first defendant was making payments on a monthly basis to the second defendant for the use of the crane on the M5 East project, it seems to me there is sufficient information available to conclude that at the very least the first defendant was a bailee for reward of the crane. If that is a correct characterisation of the first defendant's position, it seems unlikely that the second defendant would be entitled to immediate possession of the crane. In an analogous but not identical situation in Havas v Standard Knitting Mills Heydon JA said: "I would base the entitlement of (the legal owner) to possession only on giving notice not on estoppel, but on an express contractual term inferred from the circumstances or on an implied contractual term … That argument is easily supported by analysing the arrangements between (the legal owner) and the (bailee) as contractual. It is easy to infer from the circumstances an express term providing for notice or to imply into the contract a term providing for notice in order to give the contract business efficacy." (para 2). 59 Using that approach it is reasonable to infer from the arrangement between the first defendant and the second defendant whereby the crane was used on the M5 East project, that the second defendant could not take possession of the crane without providing some notice to the first defendant. Support for that conclusion is provided by the fact that the arrangement was not merely internal to the Baulderstone Hornibrook group but involved an external party, ie the joint venturer BBB. 60 I am of the opinion that for the purposes of the Act the first defendant was the "owner" of the crane as at 12 January 2001. That is the determination which I make in answer to the first question raised in the second motion.

Were the circumstances of the plaintiff's injury on 12 January 2001 governed by the Act? 61 This question arises for decision only if my finding that the first defendant was the owner of the vehicle for the purposes of the Act is incorrect. Accordingly the consideration of this question proceeds on the basis that the second defendant is the owner of the crane for the purpose of the Act. 62 Section 122 of the Act provides: "122(1) This chapter 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. …"

Section 122 is found in chapter 5 of the Act which relates to the award of damages. 63 Fundamental to the application of s122 is the definition of "injury" in s3: ""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 running out of control; or (iv) such use or operation by defect in the vehicle …" 64 It is conceded by the second defendant that it was negligent in failing to have in place a system:

(i) To ensure that the plaintiff was aware of the weight of the shutter. (ii) To ensure that the plaintiff was properly directed and instructed.

The second defendant, however, also relies upon the fact that the plaintiff gave notice of additional particulars of negligence relating to defective brakes in the crane and on a defect in the LMI. 65 As a preliminary matter I accept the submission by the third defendant that since Allianz Australia Insurance Ltd v GSF Australia Pty Limited [2005] HCA 26 a different approach has to be used when construing the Act. The previous approach of interpreting the Act as a universal scheme to provide compensation for compensable injury sustained in motor accidents to achieve optimum recovery for persons injured in such accidents has been expressly disapproved. Since 1995 the legislative intention has been to limit the definition of injury by its cause and to narrow what the legislature considered to be the over broad reading in the case law of the expression "caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle". 66 Given that approach one must now approach some of the decided cases in this area with caution. On the basis of what was said in NRMA Insurance Ltd v NSW Grain Corporation (1995) 22 MVR 317 I would have had little difficulty in concluding that on the basis of the particulars of negligence conceded by the second defendant there had been fault on the part of the owner of the crane in the use of the crane. Some doubt must now exist as to whether the word "use" is to be given such a broad interpretation and whether or not it needs to be confined to a "relevant use", ie use as a motor vehicle per se. 67 It is not necessary for me to further analyse that question since it seems to me that the definition of injury precludes the facts of this accident coming within the ambit of the Act in any event. 68 It was submitted on behalf of the second defendant that the evidence supported the proposition that the plaintiff suffered personal injury as a result of and caused during the driving of the crane. There is no doubt that the crane was being operated, but it seems tolerably clear that the crane was not being "driven" in the relevant sense when the plaintiff suffered his injury. 69 The question of what constitutes "driving" for the purposes of the Act has recently been considered in the Court of Appeal and in the High Court. In Mercantile Mutual Insurance Australia Ltd v AAMI Limited (1999) 29 MVR 393 Giles JA said: "'Driving' connotes the activity of driving, and the word is used with that connotation in the Act. The primary meaning in the definition of 'driver' is a person driving, that is, engaging in the activity of driving. When the primary meaning is amplified by the inclusion of a person for the time being in charge of a motor vehicle, the person must be in charge of a vehicle which is being driven although not driving it himself. It is necessary that there be a driving of the motor vehicle, since being in charge of a motor vehicle cannot of itself amount to fault." (para 22)

That statement of principle makes it clear that there is a distinction between operating the crane as a crane and driving it in the sense of actual control and management of the vehicle while it is moving. 70 Similarly in Insurance Commission of Western Australia v Container Handlers Pty Limited (2004) 78 ALJR 821 the following comments were made in relation to the concept of driving in the context of this kind of legislation: "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. The Australian Oxford Dictionary and The New Shorter Oxford English Dictionary 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 s3(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. 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." (McHugh J, para 52) "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." (Callinan J, para 133) "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." (Heydon J, para 153) 71 I do not propose to refer in any detail to the most recent decision on this issue, QBE Insurance (Australia) Limited v Smith [2005] NSWCA 130 since the reasoning in that case appears at least implicitly to be somewhat inconsistent with the approach adopted by the majority in Allianz Australia Insurance Limited v GSF Australia Pty Limited. 72 By reference to the above statements of principle, I am of the opinion that the plaintiff was not "driving" the crane when the accident occurred. The crane was stationary. No locomotion was intended or attempted. All that the plaintiff was doing was controlling the lifting mechanism of the crane. In those circumstances I am of the opinion that the injury did not occur as a result of nor was it caused during the driving of the crane. 73 The second defendant submitted that because the crane made two sudden movements backwards immediately before it tipped over, it should be regarded as having run out of control. In other words the plaintiff suffered injury as a result of and which was caused during the vehicle running out of control. 74 Apart from the primary problem that the vehicle was not being "driven" at the time, it is clear factually that the rearward movement of the crane stopped when the plaintiff applied the park brake. It is also clear that the injury was not caused by the rearward movement of the crane but rather by the crane tipping over thereby trapping the plaintiff's leg. It has not been established that the plaintiff suffered personal injury as a result of and which was caused during the crane running out of control. 75 The final submission in relation to injury by the second defendant is that the plaintiff's personal injury occurred as a result of and was caused during the use or operation of the crane by a defect in the crane. The Court is asked to infer that such a defect existed because of the plaintiff's evidence that the LMI indicated a weight of 2.8 tonnes when in fact the weight of the shutter being lifted was approximately 4.5 tonnes. The Court is also asked to infer that there was a problem with the park brake because the crane made two backward movements immediately before it commenced tipping over. 76 Two experts, Messrs Harley and Fogg, have considered this matter. Their reports were before me. Mr Harley made no reference to any defect in either the LMI or the park brake. Mr Fogg made no reference to any defect in the park brake and said that it would be speculative to assert that there was some defect in the LMI. Of course the whole question of the operation of the LMI is complicated by the fact that the wrong setting was keyed into it before the crane commenced operation. In relation to the park brake, this was checked after the accident and found to be operating correctly. 77 There is simply no evidence before me which would enable me to find that there was on 12 January 2001 a defect in the crane and there is no evidence before me which could establish that the plaintiff suffered his personal injury as a result of or which was caused during the use of the crane by such a defect in the crane in the sense explained by the High Court in Allianz Australia Limited v GSF Australia Pty Limited. 78 As was appropriately conceded by the second defendant, the causes of the plaintiff's injury were a failure to ensure that the plaintiff was aware of the weight of the shutter and a failure to ensure that the plaintiff was properly directed and instructed, particularly in relation to the use of the LMI. Those matters have nothing to do with the driving of the crane nor do they relate to any defect in the crane. Accordingly I am not satisfied that the circumstances of the plaintiff's injury on 12 January 2001 are such as to come within the ambit of the Act. 79 The findings which I make in relation to the second notice of motion are these:

(1)(a) I find that as of 12 January 2001 the owner of the Grove 25 tonne rough terrain crane, registered No WJL 622, was the first defendant for the purposes of the Motor Accidents Compensation Act 1999 as amended.

(b) I find that the circumstances of the plaintiff's injury on 12 January 2001 do not come under the Motor Accidents Compensation Act 1999.

Those findings are made in accordance with Pt31 r2 of the Supreme Court Rules. 80 No submissions were made to me concerning costs. This issue will relate at least in part to the resolution of the first motion. Accordingly I reserve the question of costs.

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