Purt v State of Qld [2003] QCA 503

Court of Appeal (Qld)|2003-11-14|Before: Jerrard, JA and Dutney and Philippides JJ, Separate reasons for judgment of each member of the Court, each concurring as, to the order made

[1] JERRARD JA: In this appeal I have had the advantage of reading the judgment of Philippides J and respectfully agree with her Honour's reasons and proposed orders. On the appellant's own pleadings, wrongful acts or omissions by the respondent are alleged to have wholly or partly caused the appellant personal injury, that being personal injury caused by, through or in connection with a motor vehicle; and on the appellant's pleadings those wrongful acts or omissions were relevantly in respect of the particular motor vehicle he was operating when injured. That those wrongful acts or omissions constituted or evidenced an unsafe system of work does not prevent their being in respect of that particular motor vehicle. This issue is further discussed in the matter of , heard on the same day as this appeal.

[2] DUTNEY J: I have read the reasons for judgement of Philippides J and agree with her proposed order and her reasons for it.

[3] PHILIPPIDES J: The issue in this appeal is whether on the case alleged by the appellant the injury suffered by the appellant was caused by an act or omission in respect of a motor vehicle for the purpose of s 5(1)(b) of the Motor Accident Insurance Act 1994 ("the Act").

[4] The appellant was injured on 9 January 1997 when his All Terrain vehicle provided by his employer for the purpose of distributing fruit-fly baits in the Mowbray area, struck a rock concealed by long grass, thereby rolling over. The appellant in paragraph 8 of the Amended Statement of Claim pleaded that the acts or omissions of the respondent which caused or contributed to the accident involving the vehicle were the respondent's failure:

(a) to make a proper risk assessment of the suitability of the vehicle for the purposes of bait distribution, including as to the likelihood of a roll over incident and the risk of injury in such an event;

(b) to institute and maintain a safe system of work by supplying the vehicle to be driven, instead of an alternative type of vehicle, such as a small four wheel drive vehicle;

[5] The learned judge at first instance dismissed an application by the appellant for an order striking out paragraph 4 of the respondent's defence, wherein the respondent pleaded that the omissions alleged attracted the provisions of the Act. The learned judge also found in favour of the respondent on its application to have the appellant's claim summarily dismissed, on the basis that the negligence alleged against the respondent was in respect of a motor vehicle so that the provisions of the Act applied. (It was conceded by the appellant that, if the Act applied, the proceedings were a nullity, because the appellant had not complied with the notice provisions of the Act before the expiry of the relevant limitation period.)

[6] Section 5(1) of the Act provides:

"This Act applies to personal injury caused by, through or in connection with a motor vehicle if, and only if, the injury -

(ii) a collision, or action taken to avoid a collision, with the motor vehicle; or

(iv) a defect in the motor vehicle causing loss of control of the vehicle while it is being driven; and

(b) is caused, wholly or partly, by a wrongful act or omission in respect of the motor vehicle by a person other than the injured person."

[7] It was not disputed that the Act applied to the vehicle under consideration here, nor that the circumstances pleaded by the appellant fell within s 5(1)(a) of the Act. The only issue of dispute was whether or not the omissions alleged by the appellant attracted the second limb of s 5(1) of the Act.

[8] On that issue the appellant contended, on the basis of the pleaded case, that his injury was not caused by a wrongful act or omission by his employer in respect of a motor vehicle, but rather by a wrongful act or omission in the system of work. The appellant thus argued that the injury was caused by the adoption by his employer of an unsafe system of work and that the only nexus with the motor vehicle was that it happened to form part of the equipment provided by the employer as part of the system of work.

[9] The respondent on the other hand contended that the pleaded acts or omissions of negligence concerned the suitability of the vehicle and the training or instructions given in respect of the operation of the vehicle provided to the appellant and were clearly within s 5(1)(b) of the Act. It was also submitted that the alleged wrongful act or omission need not be exclusively "in respect of" a motor vehicle in order that s 5(1)(b) of the Act apply, so that the existence of another causative factor did not exclude the application of the Act.

[10] In Technical Products Pty Ltd v State Government Insurance Office (Queensland)[1] the High Court considered the meaning of words in s 3(1) of the Motor Vehicles Insurance Act 1936 (Qld), the legislation which preceded that under consideration here. Section 3(1) of the 1936 Act required the owner of a motor vehicle to affect insurance cover "against all sums for which he ... shall become legally liable by way of damages in respect of such motor vehicle for accidental bodily injury ... where such injury is caused by, through, or in connection with such motor vehicle." It was held that the words "in respect of" had a wide meaning and that the nexus between legal liability and motor vehicle was a broad one, not susceptible to precise definition. However, the majority in Technical Products Pty Ltd v State Government Insurance Office (Queensland) stated that in order to establish the requisite nexus between legal liability and the motor vehicle for the purposes of the Act, "some discernible and rational link between the basis of legal liability and the particular motor vehicle" was required.[2] A "merely coincidental or extraneous connexion" was insufficient.[3]

[11] Although in s 5(1)(b) of the Act, the words "in respect of" are prefaced by the words "a wrongful act or omission", rather than the words "legally liable by way of damages", there was no suggestion before this Court that the test in Technical Products ceased to continue to apply to s 5(1)(b) of the Act. Indeed, the respondent submitted to the contrary, relying on Townsville Trade Waste Pty Ltd v Commercial Union Assurance Company of Australia Limited.[4] I accept the respondent's submission on that issue.

[12] In the present case, the learned judge at first instance was correct in finding that the requisite nexus between the respondent's alleged wrongful act or omission and the motor vehicle was satisfied. The present case cannot be characterised as one where the connexion was merely extraneous or coincidental. On the contrary, the wrongful acts or omissions concerning the provision and suitability of the motor vehicle, and the lack of instruction given to the appellant in respect of its operation, form the cornerstone of the alleged liability. The wrongful acts and omissions alleged to have caused the injury thus point to "a discernible and rational link" between the conduct alleged to have caused the injury and the particular motor vehicle.

[13] The fact the appellant's case against the respondent alleged wrongful conduct in respect of an unsafe system of work does not preclude the conclusion that the case as pleaded also asserted wrongful conduct in respect of a motor vehicle, such that s 5(1) of the Act applied. Indeed, there is clear authority to the effect that an employer may be liable "in respect of a motor vehicle" because of a defective system of work involving that vehicle.[5] There is also authority that a liability in respect of a motor vehicle for the purposes of the Act is not excluded by the existence of an alternative basis of liability, for example, as an occupier or as an employer in respect of an unsafe place of work.[6] Accordingly, the learned judge at first instance correctly found that s 5(1)(b) of the Act applied.

[1] Technical Products Pty Ltd v State Government Insurance Office (Queensland) [1989] HCA 24; (1989) 167 CLR 45.

[2] [1989] HCA 24; (1989) 167 CLR 45 per Brennan, Deane and Gaudron JJ at 47.

[3] [1989] HCA 24; (1989) 167 CLR 45 per Dawson J at 51.

[5] McEwan v Council of the City of the Gold Coast [1987] 1 Qd R 337 at 341; Suncorp Insurance & Finance v Workers' Compensation Board of Queensland [1990] 1 Qd R 185 at 190, 193; Manning v Taroom Shire Council [1994] QCA 430 at p3 per Pincus JA and Derrington J.

[6] Curtain Bros. (Qld) Pty Ltd v FAI General Insurance Company Limited [1995] 1 Qd R 142 at 146; Patullo v Grays Sawmills Pty Ltd [1995] 2 Qd R 528 at 532.

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