RG & KM Whitehead Pty Ltd v Lowe

Court of Appeal (NSW)|2013-04-11|Before: Barrett JA, Preston CJ, Hodgson JA

Judgment 1BARRETT JA: I agree with Tobias AJA. I merely add an observation on the s 3A(1)(a) issue. The "driving" of a motor vehicle does not end or become suspended when the vehicle stops at a traffic light or pauses at a toll gate (QBE Insurance (Australia) Ltd v Smith [2005] NSWCA 130; (2005) 43 MVR 407 at [36] per Hodgson JA). In those circumstances, the driver maintains control of the vehicle for the purpose of proceeding when the temporary interruption ends. The characterisation is different when, as in Motor Accident Commission v ANI Corp Ltd (1997) 26 MVR 57, Suncorp Metway Insurance Limited v Sichter [2010] QSC 164; [2011] 2 Qd R 89 and the present case, the stopping is so that some aspect of the vehicle's structure unrelated to its locomotive and transporting functions may be deployed by the driver. 2TOBIAS AJA: On 6 December 2007, the respondent was employed by the appellant in the course of which he was injured when a metal discharge chute (the chute) weighing up to 500 kgs and which formed part of, but had separated from, a wood chipper machine (the chipper) struck the respondent whilst he was standing on the machine, causing him to fall and sustain serious injuries. 3At the time of the accident Mr Rodney Whitehead, a director of the appellant, was operating a front end loader (the loader) in an attempt to position the chute so that it formed a complete connection with an outfeed pipe or sleeve (the sleeve) attached to the chipper. As he only achieved a partial connection, in order to complete the operation he instructed the respondent to mount the cage of the chipper and to use a mallet or sledgehammer to tap the chute, the intention being that that might move the chute into an alignment whereby its connection with the sleeve would be complete. 4The injury sustained by the respondent was serious but apparently not sufficiently so as to justify suing his employer for work injury damages under the Workers Compensation Act 1987 (NSW). Rather, he sought to rely upon the provisions of s 3A of the Motor Accidents Compensation Act 1999 (NSW) (the MAC Act). 5In this endeavour he was successful. The primary judge, Judge Robison, in an ex tempore judgment delivered on 22 March 2012, held that s 3A was engaged. His Honour assessed the respondent's damages in the sum of $386,400.25 and entered a verdict and judgment in his favour for that amount. The appellant now appeals against the primary judge's finding that the MAC Act applied in respect of the respondent's injuries. No challenge is made to his Honour's assessment of damages.

The background facts 6The respondent was employed by the appellant as a labourer at the appellant's timber yard. On 6 December 2007, the respondent and two other labourers employed by the appellant were operating the chipper at premises owned by Blayney Treated Pine Pty Ltd (Blayney). 7At the time, Mr Whitehead was operating a front end loader owned by Blayney which was unregistered and uninsured for the purposes of the MAC Act. 8At the relevant time, the appellant, his brother, Mr Wayne Lowe, a Mr Joshua Dorset and Mr Whitehead were engaged in the task of re-attaching the chute to the chipper. The chute had previously been removed to free a blockage and the four men were engaged in attempting to reconnect the chute to the chipper using the loader to manipulate the chute into position. 9The loader operated by Mr Whitehead was an articulated vehicle, but rather than having a bucket attached to its hydraulic arms, it had what appear to be two tines or forks over which sleeves had been attached to extend its reach. The section of the loader to which the tines were attached was operated hydraulically by the driver from his cabin by the use of a lever. This enabled the operator of the loader to manoeuvre the tines backwards and forwards, up and down and to tilt them. They could also be moved laterally from side to side while the loader was stationary by turning its steering wheel which would cause the front wheels of the loader to turn on their axis thereby moving the tines from side to side. 10The chute was generally L-shaped and the short end had to be manoeuvred so it aligned with the sleeve which was part of the chipper. Once properly aligned the chute would cover the sleeve by sliding down it to form a stable connection. 11In order to achieve the reconnection of the chute to the sleeve, the former was attached by Mr Whitehead to the tines by a chain which was wrapped around both the chute and the tines. Once the tines were lifted off the ground the chute was suspended below the tines by the chain. Mr Whitehead then drove the loader a short distance to a point where the chute was suspended over the chipper with the intent of manoeuvring the chute into a position whereby it would become fully aligned with the sleeve, thus enabling the connection to be completed. 12However, despite a fair deal of manoeuvring, Mr Whitehead was only able to partially connect the chute to the sleeve. As it was not perfectly aligned with the sleeve, it only extended down the sleeve by an inch or two. Thereupon Mr Whitehead instructed the respondent to mount the chipper and to use a sledge hammer to tap the lower part of the chute, the idea being that that might bring it into alignment with the sleeve. 13The respondent's evidence was that he tapped the lower part of the chute with the sledgehammer and then stood back whereupon that part of the chute that was partly attached to the sleeve became disconnected or separated therefrom whereupon it swung towards the respondent and knocked him off the chipper. 14It was the respondent's case at trial and on the appeal that Mr Whitehead, whilst driving the loader, must have moved the chute causing it to dislodge from the sleeve and to swing freely while hanging by the chain from the tines of the loader. In oral argument on the appeal, the respondent submitted that the evidence supported a finding that Mr Whitehead intentionally moved the tines in an upwards direction which thereby caused the chute to become separated from the sleeve which allowed it to swing freely striking the respondent. It was this activity on the part of Mr Whitehead which, so it was submitted, caused the incident to be one to which s 3A of the MAC Act applied.

The relevant statutory provisions 15Section 3A(1) of the MAC Act was in the following terms: (1) This Act (including any third-party policy under this Act) applies only in respect of the death of or injury to a person that is caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle and only if the death or injury is a result of and is caused (whether or not as a result of a defect in the vehicle) during: (a) the driving of the vehicle, or (b) a collision, or action taken to avoid a collision, with the vehicle, or (c) the vehicle's running out of control, or (d) a dangerous situation caused by the driving of the vehicle, a collision or action taken to avoid a collision with the vehicle, or the vehicle's running out of control. 16Section 3 defined "fault" to mean "negligence or any other tort". It was common ground that the alleged fault in the present case was negligence on the part of Mr Whitehead and that the loader was a "motor vehicle" within the definition of that expression in s 3.

The issues at trial and the primary judge's conclusions thereon 17It was common ground that in order to establish that the MAC Act applied with respect to the respondent's injury, he had to prove first, that that injury was caused by the fault of Mr Whitehead; secondly, that that fault was in the use or operation of the loader; and thirdly, that the injury was a result of Mr Whitehead driving the loader and was caused during the driving of the loader: s 3A(1)(a). Alternatively to the third issue, the respondent contended that the injury was a result of and was caused during a collision with the loader (s 3A(1)(b)) or was a result of and was caused during a dangerous situation caused by the driving of the loader (s 3A(1)(d)). 18At trial the respondent submitted, and the primary judge accepted, that the injury sustained by the respondent was caused by the fault of Mr Whitehead as the driver of the loader in its use or operation and, further, that the respondent's injury was a result of the driving of the loader and was caused during the driving of the loader within the meaning of s 3A(1)(a). His Honour also held, in what appeared to be somewhat of an afterthought, that s 3A(1)(b) and (d) applied to that injury.

The course of the trial 19As the primary judge noted, the appellant admitted that Mr Whitehead was "negligent in what he did". In this respect the respondent's statement of claim pleaded (at paragraph 14) that the appellant, as the employer of Mr Whitehead, was vicariously liable for his negligent acts or omissions. Paragraph 15 of the statement of claim then set out particulars of the alleged negligence. In the appellant's amended defence to the statement of claim, it admitted that it was negligent but did not admit the particulars of negligence alleged in paragraph 15 of the statement of claim. Those particulars all related, in effect, to the manner in which Mr Whitehead operated the loader. In other words, they were all directed to establishing the application of s 3A(1)(a) and (b) of the MAC Act. 20However, it is clear that the appellant's admission of negligence was one made in its capacity as the employer of the respondent, presumably upon the basis that in requiring, through Mr Whitehead, the respondent to stand on the chipper in order to use a sledgehammer to tap the chute for the purpose of bringing it into alignment with the sleeve, the appellant thereby failed to provide the respondent with a safe system of work. At trial, that was certainly the appellant's case: it submitted that the respondent's injuries were caused by a work injury accident and not by a motor vehicle accident.

The relevant evidence 21The respondent's evidence was given orally. Relevantly, his evidence in chief may be summarised as follows: (a) When Mr Whitehead lifted the chute after the blockage had been cleared in order to reconnect it to the chipper, it was unbalanced and swaying around. Mr Whitehead then slowly drove the loader forwards towards the chipper to a point where the chute was located approximately one metre above the chipper. He then lowered it down but due to the fact that it was swaying around he was unable to get it to line up properly with the sleeve. (b) In the course of his attempt to align the chute with the sleeve, Mr Whitehead moved the tines forwards and backwards, his intention being to manoeuvre the chute over the top of the chipper. (c) He then lowered the chute in a manner which enabled it to be connected to the sleeve but the connection was not complete. (d) Mr Whitehead was getting stressed and then instructed the respondent and his co-workers to mount the chipper and grab hold of the chute, presumably to guide it into a position where it was fully aligned with the sleeve. He continued to slowly drive the loader forward, moving the tines forwards and backwards in an attempt to line up the chute with the sleeve. (e) The respondent then tapped the chute with the sledgehammer and then stood back, noting that Mr Whitehead was still moving the tines forwards and backwards. The chute then swung around and knocked him off the chipper. (f) The following exchange occurred: Q. Right. What was the forklift (sic) doing at the time if anything, at the time that it swung around and knocked you off? A. Moving the forks forward and backwards. ... Q. Is it your evidence that the forks were moving forward and backwards at the time that you fell off, is that what you're saying? A. Yeah. 22The respondent's evidence in cross-examination was to the following effect: (a) When the chute was suspended over the sleeve it was swaying (presumably because it was suspended from the tines of the loader by the chain). It was then lowered so that it was partially, but not completely, over the sleeve. (b) Although one end of the chute was partially connected to the sleeve, the chute was still "rocking around" on the chain. It was at that point that Mr Whitehead instructed the respondent to get up onto the chipper. (c) Although it was suggested to the respondent that the loader at the time of the accident was stationary, he denied that that was so. When it was suggested to him that he did not see the loader moving he responded: "I actually did see the loader moving." (d) With respect to him carrying out Mr Whitehead's instructions to try and manoeuvre the chute onto the sleeve, the respondent's evidence in cross-examination was as follows: Q. And you were given a hammer, that right? A. Yes. Q. Where did you hit it? A. At the bottom where it - where it slides over on the coupling. Q. And when you hit it, it swung back at you, is that correct, is that what happened or don't you remember? A. Yeah, it all happened that quick, I'm not actually sure. I don't think it swung back straight away as soon as I hit it. Q. But you're in no doubt that it hit you and knocked you off the chipper? A. Yeah. Q. You said you stepped back, you didn't just miss your step? A. No, no, it hit me, really I shouldn't have even been up there. (e) Again it was suggested to the respondent that whilst he was standing on the chipper the loader was not moving but was stationary, a proposition which he denied. 23The following exchange took place in re-examination: Q. When you tapped the chute, did the chute discharge or did it remain there? A. It stayed there. Q. So it wasn't until you moved back that it came out and slung round? A. Yes. 24Evidence was given by the respondent's brother, Wayne, and by Mr Dorset, but in my opinion that evidence did not really assist the primary judge, a proposition with which the respondent generally agreed. 25Mr Whitehead's evidence comprised both a written statement as well as oral evidence. In his written statement dated 3 July 2009 provided by him to a workers compensation investigator, he stated the following: 18) When the chipper blocks it is sometimes necessary to remove the main distribution chute from the chipper in order to clear the blockage. On the day of this accident that is exactly what we had to do. I was driving the articulated front end loader owned by Blayney Treated Pine. There is a hitching point on the chute of the chipper and we had attached a chain to the hitch. I then lifted the chute clear of the top of the chipper. After clearing the blockage we were then in the process of refitting the chute to the top of the chipper. The chute is very heavy and made of heavy gauge steel. With the front end loader I had positioned the chute over the fixing points of the chipper outlet and was trying to get the chute in a position so that the securing bolts could be fastened. 19) We were having some trouble aligning the chute over the pipe in top of the chipper. The claimant then climbed up onto the chipper at a height of about 1.5 metres off the ground to guide the chute into place over the out feed pipe of the chipper. The front end loader was at that time stationary and I was seated in the driver seat. The chute was almost in the correct position but needed to be taped with a sledge hammer. The claimant while standing on the top of the chipper used a sledge to tap the chute. I kept the front end loader stationary and it was out of gear and the hand brake was engaged and the hydraulic locking device was also engaged at that time. The claimant then hit the chute with the hammer and the chute moved suddenly back towards the claimant and hit him very hard. The chute had only moved a distance of about a metre but it was a very heavy item. The force of the impact with the claimant knocked him off the chipper and fell onto ground again that was a fall of about 1 to 1.5 meters. 26Although the primary judge considered that Mr Whitehead's oral evidence was in direct conflict with his statement in paragraph 18 that he lifted the chute clear of the chipper (for the purpose of removing the chute to enable the blockage to be removed), the critical part of Mr Whitehead's evidence is that contained in paragraph 19. 27If accepted, Mr Whitehead's evidence in paragraph 19 was that at the time the respondent hit the chute with the hammer the loader was stationary, out of gear, the hand brake engaged and the hydraulic locking device also engaged. In other words, it and all its relevant parts were stationary. The chute was suspended by the chain from the tines and was partially connected to the sleeve but it was only when the chute was hit with the hammer by the respondent that it moved suddenly back towards the respondent and struck him, knocking him to the ground. In other words, had that evidence been accepted, on one view of it the operation of the loader had ceased and the separation of the chute from the sleeve was due solely to it being hit by the respondent with the hammer in accordance with the instruction that Mr Whitehead had given him. 28However, as the primary judge noted, in cross-examination Mr Whitehead made a number of concessions. His evidence may be summarised thus: (a) For the loader to move in a forward or backward direction it is necessary for the driver to use the accelerator. Unless the accelerator is depressed the loader remains stationary although the articulated front section containing the bucket, or in the present case the tines, can be moved in various directions by a lever in the driver's cabin. It can be moved up and down or tilted and moved laterally by use of the steering wheel. Apart from the use of the steering wheel to move the tines in a lateral direction all other manoeuvres of the tines are caused by the use of the joy-stick in the driver's cabin. In order to enable the tines to be moved the loader's motor has to be running but there is a hydraulic pump attached to the motor that moves the tines in various directions (other than laterally). (b) When the chute is properly in position it slides down the sleeve for a distance of between four and six inches. It would appear that it is then locked into position. However, when the chute is separated from the sleeve, due to its weight it takes a deal of skill to manoeuvre it so that the end of the chute fits fully over the sleeve. (c) In order to align the end of the chute with the sleeve it was thus necessary to utilise the manoeuvrability of the tines in order manipulate the chute into its correct position. (d) Just before the chute became separated from the sleeve and knocked the respondent over it was partially connected to the sleeve although its weight was being taken by the chain attached to the tines of the loader. Mr Whitehead accepted that he would not have slackened off or released the chute until it had become fully coupled with the sleeve. (e) The reason he instructed the respondent to use a sledgehammer was so as to create a relatively tiny movement between the chute and the sleeve so that they came into alignment. He accepted that it was necessary to ensure that the chute was perfectly aligned with the sleeve to enable a proper connection to be achieved. He further accepted that he had to "minutely manipulate" the chute attached to the loader to enable alignment to occur. However, in order to obtain the necessary alignment the operator of the loader needed to use all its manoeuvrability to jiggle the chute so that it became aligned with and moved down the sleeve. However, when asked whether that is what he was doing at the time that the chute "discharged and swung around and hit" the respondent, his answer was "No". (f) However, after agreeing that the loader was at all times taking the weight of the chute, the following exchange occurred: Q. If that is the case for Mr Lowe to tap the side of the shaft would have no effect whatsoever because it wouldn't lower? A. That's right but it had to line up a little bit better than that. Q. That's not right, is it, the reality is this, that it was all happening at the one time in a very short period of time which required not only tapping of the shaft but the manoeuvring of the shaft using the front end loader, that's correct, isn't it? A. Yes. Q. And that includes the steering wheel moving the front wheels to get the lateral movement of the forks and thereby moving the shaft in a lateral movement, so you're jiggling it all around, aren't you, to try and get this move down the shaft? A. Yes, originally. Q. Well you, had to continue that because it hadn't moved all the way down the shaft, didn't you? A. That's right, yes. Q. So what I say is correct, is it not, that whether you were doing it at the very moment that the shaft discharged, within microseconds of that point of time you were going to jiggle it around to get it to move down the residual shaft attached to the woodchip machine, you agree with that, don't you? A. Yes. (g) The cross-examiner then suggested to Mr Whitehead that he needed all the manoeuvrability of the loader for the purpose of bringing the chute into perfect alignment with the sleeve. The following exchange then occurred: Q. And the only way to get it to jiggle down the shaft is to create a jiggling of the shaft by manoeuvring the front end loader? A. That is one way, yes. Q. Well that is the only way, is it not? A. No, I got Anthony to give it a tap to see if it would lower. (h) Mr Whitehead then accepted that the chute would not move until he first of all lowered the tines. He was then asked the following: Q. So you have got to lower the tines at least and if you felt that the impediment to the movement of the shaft down onto the residual shaft was a lateral problem you would jiggle the steering wheel for greater movement left and right, that's correct, isn't it? A. Yes that is correct. It is apparent from this question that it was couched in theoretical terms. The cross-examiner did not directly put to Mr Whitehead that he was jiggling the steering wheel at the time that the respondent was tapping the chute in order to attempt to re-align it. (i) However, the following exchange then followed: Q. We have agreed, have we not, that just prior to the shaft swinging around, hitting Mr Lowe it was partially connected to the residual shaft of the woodchip machine? A. Yes. ... Q. What I want to put to you is that the only way that it could of discharged from its connection is by movement of the chain connected to the forklift? A. Yes. (j) Finally, Mr Whitehead stated that once he had got the chute into position he stopped everything and then called to the respondent to "give it a tap". The following exchange then occurred: Q. And you do agree with me, do you not, that just moments before he tapped it you were using all the manoeuvrability of the machine to get it to that position? A. Yes. ... Q. Which includes the use of the front wheels to give lateral movement to the shaft, you agree with that? A. Yes, if it wasn't in position at the time. ... Q. It wasn't in position, that is the shaft was not in position until just before Mr Lowe got up to tap it? A. Yes. Q. So up to that point of time you were using the tines and the front wheels of the machine to put it into position? A. Yes. Q. And in order for it to be effectively tapped into position, it is necessary for you as the front end loader operator to lower the forks of the front end loader about the same time? A. Yes. 29As I have indicated, the respondent's case was that either at the same time or immediately following the respondent tapping the chute with the sledgehammer, Mr Whitehead intentionally raised the tines of the loader which caused the chute to separate from the sleeve thus permitting it to swing freely and strike the respondent. There is some support for that case in the last question and answer referred to at [28(i)] above. On the other hand, the respondent's case is inconsistent with the last answer referred to at [28(j)] above where the cross-examiner specifically suggested that in order for the chute to be effectively tapped into position it was necessary for Mr Whitehead as the loader operator to lower (as distinct from raising) the tines of the loader at the same time. That question is inconsistent with the respondent's case on the appeal that Mr Whitehead lifted the chute in an upwards direction. In his written submissions at trial the respondent submitted that the only inference that could be drawn from the facts was that Mr Whitehead's actions whilst driving the loader must have moved the chute causing it to dislodge from the woodchip machine and swing around and strike [the respondent].

The primary judge's findings with respect to the credit of the respondent and Mr Whitehead 30The primary judge summarised at some length the respondent's evidence both in chief and in cross-examination. He concluded that the loader was being driven in a way so as to manoeuvre the chute over the sleeve to enable it to be properly affixed to the sleeve. Subject to the issue as to whether in fact the loader was being driven, this conclusion appears to have been common ground. 31On the issue of credit his Honour stated that he was impressed with the detail of the respondent's evidence as to the circumstances leading up to and including the clearance of the blockage of the chute. However, because of the conflict between Mr Whitehead's oral evidence and so much of paragraph 18 of his statement where he asserted that he "lifted the chute clear of the top of the chipper", he had serious concern as to the degree of accuracy of Mr Whitehead's recollection of events on the day in question. 32The primary judge noted that the loader was used to attempt to reposition the chute over the sleeve of the chipper and that Mr Whitehead had conceded elements of manoeuvrability insofar as this process was concerned. His Honour then stated that he had some concerns about the veracity of Mr Whitehead's evidence and although he was not prepared to say he was an untruthful witness, he considered that his accuracy in recalling events "looms large here" particularly having regard to the "significant degree of inconsistency" between his oral evidence and what he said in paragraph 18 of his statement. On the other hand, his Honour considered that the respondent's evidence was "clear", concluding that the court was entitled to accept his evidence as to the circumstances of the accident, how it occurred and the results which followed. 33His Honour's apparent rejection of Mr Whitehead's evidence, at least where it was inconsistent with that of the respondent, is somewhat odd. This is because, firstly, as the appellant submitted and the respondent did not deny, the alleged inconsistency related to a point of time when Mr Whitehead had removed the chute from the chipper after it had become blocked to enable the blockage to be removed. Secondly, subject to one matter, there was no inconsistency in my view between the respondent's evidence on the one hand and Mr Whitehead's evidence on the other. A reading of the latter's evidence makes it clear that he was more than willing to make concessions and that the only refusal of Mr Whitehead to agree with a proposition put to him by the cross-examiner was when it was suggested to him that he was manoeuvring the loader to jiggle the chute to enable it to align with the sleeve at the time that it became separated therefrom and swung and hit the respondent: see the exchange at [28(g)] above. 34The only relevant inconsistency between the evidence of the respondent and that of Mr Whitehead was that the former was adamant that the loader was moving forward when he was standing on the chipper whereas Mr Whitehead's evidence was that once he had manoeuvred the loader to a point where he could raise the chute via the tines to a point above the chipper, the loader was stationary, and its brake had been applied. Further, once he had lowered the chute so that it came into contact with the sleeve, he engaged the hydraulic locking device. These assertions in paragraph 19 of his statement were not directly challenged in cross-examination. The only challenge to his statement that the hydraulic locking device was engaged is in the inconsistent questions to which reference is made at [29] above. 35Furthermore, the primary judge, when criticising the alleged inconsistency between Mr Whitehead's oral evidence and his assertion in paragraph 18 of his statement that after the chute became blocked, he lifted it clear of the top of the chipper, remarked, in effect, that it was more likely that his evidence in paragraph 18 of his statement should be accepted rather than his oral evidence on the same issue as his statement was given on 12 June 2009 at a time closer to the events in question than when he gave evidence on 20 March 2012, nearly three years later. Accepting that observation, there would seem no proper reason for his Honour to reject Mr Whitehead's evidence at paragraph 19 of his statement and he made no finding to that effect. In fact, he made no finding rejecting Mr Whitehead's evidence that the loader was, at the material moment, other than stationary.

The primary judge's findings on liability 36I turn now to the factual findings his Honour made. They can be summarised as follows: (a) The respondent was instructed by Mr Whitehead to undertake the task that he was required to do in order to assist the chute being placed into the position where it was intended to go; (b) Mr Whitehead agreed that he had to use all of the manoeuvrability of the loader in order to attempt to position the end of the chute over the sleeve; (c) He also agreed that it was partially connected before it swung and struck the respondent; (d) He further agreed that it would have had to have been pretty well perfectly aligned at the time that the respondent was required to tap the chute but this was not the case; (e) Mr Whitehead had denied manoeuvring the loader when the chute discharged from its connecting point. His Honour then added the following remarks: ... but I remind myself of his earlier evidence that he had to use all of the manoeuvrability of the loader and that would have to include a movement of at least some of the wheels in that task, albeit in a stationary position. Indeed he went on to agree with the proposition that the only way that it could have discharged was by movement of the chain connected to the front end loader. The last sentence of the above quote is a reference to the evidence of Mr Whitehead to which I have referred at [28(i)] above. "The earlier evidence" to which his Honour referred appears to be Mr Whitehead's evidence where he agreed that in order to position the chute so as to bring it into alignment with the sleeve it would be necessary to use all the manoeuvrability of the loader to produce that result. There was no issue that that was the case. The real issue was whether, assuming there was fault on the part of Mr Whitehead, that fault was "in the use or operation" of the loader at the time the chute separated from the sleeve thereupon striking the respondent; (f) All the parts of the loader which could have been manoeuvred in order to jiggle or move the chute into an appropriate position were utilised. Accordingly, even if the hand brake had been applied it was clear that Mr Whitehead must have used the steering wheel to manoeuvre the front wheels in order to provide lateral movement of the tines; (g) Accordingly there was a strong element of connection from a factual point of view between the loader, the tines and the slipper or sleeve for the tines, the chain and the chute itself. It was all part and parcel of the same process, and effectively all part and parcel of the same vehicle as all were attached thereto. The loader was being driven by Mr Whitehead, who was attempting to do something commensurate with what the loader was designed to do; (h) It was unnecessary to categorise what occurred as a work accident or a motor vehicle accident as the evidence led to only one conclusion and that was that the accident involved the use of a motor vehicle and fell within the provisions (presumably) of s 3A(1)(a) of the MAC Act. It was thus a motor vehicle accident as defined. 37After quoting passages from the joint judgment of Gleeson CJ, Gummow, Hayne and Heydon JJ in Nominal Defendant v GLG Australia Pty Limited [2006] HCA 11; (2006) 228 CLR 529 at [27] and [29], his Honour concluded: In this case, clearly the fault indeed did lie in the use or operation of the vehicle under consideration here. It was clearly the driving of the vehicle. In my view when one sits in the seat of a vehicle and manoeuvres it in the way which I have found was manoeuvred, clearly that person is driving. It does not necessarily mean that any speed or rotation of the wheels is a necessary ingredient of what could be conveniently described as driving a motor vehicle. 38His Honour then rejected the submission made on behalf of the appellant that the relevant fault was not in the use or operation of the loader as a vehicle, but in its use as a lifting device. He continued: To the extent from a factual point of view and the degree of connection between the devices which were utilised, such as the tines, the slipper or sleeve, the chain and the pipe itself, that all in all, that all formed part of the vehicle at all relevant times. So the submission that the evidence establishes that Mr Whitehead was manoeuvring the chute into position which included the movement of the front end loader, right up to the moment that the plaintiff sustained his injury, and that the front end loader was reversed as soon as the plaintiff was struck in my view is amply made out on the evidence in this case. 39This last finding, I would accept, is a finding that Mr Whitehead was utilising the tines of the loader and was manoeuvring the chute attached thereto by the chain right up to the moment that the chute disengaged itself from the sleeve and then swung and struck the respondent. This finding does not necessarily depend upon any particular movement of the loader or its tines and, in particular, does not necessarily depend upon the respondent's submission that the movement must have been an upwards movement to disconnect the chute from the sleeve. It could have been a lateral movement but it was a movement utilising the tines of the loader nonetheless.

The relevant legal principles 40In Nominal Defendant v GLG at [29] the plurality in a passage cited by the primary judge, observed that it was necessary to give weight to the word "in" in the expression "in the use or operation of the vehicle" in s 3A(1) of the MAC Act. Relevantly, the words "in the use" means with respect to, as a consequence of, or by reason of the use of the relevant vehicle in the circumstances. That in turn points to the need to examine the alleged "fault" in the actual use or operation of the relevant vehicle at the particular time and place of the injury. At [31] their Honours considered that the question was one of characterisation. Relevantly, the question is whether the facts of the case are to be characterised as revealing fault (in this case, negligence) on the part of the driver of the relevant vehicle in its use or operation. 41There have been many cases since Nominal Defendant v GLG which state the relevant principles as determined by the plurality in that case but which have been decided on their own particular facts. For instance, the question of characterisation was emphasised by Giles JA, with whom Handley AJA agreed, in JA & BM Bowden & Sons Pty Limited v Doughty [2009] NSWCA 82 at [31]; (2009) 52 MVR 552. His Honour observed that the plurality in Nominal Defendant v GLG at [29] 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 (in that case) the forklift truck at the particular time and place of the injury. I pause to observe that the provisions in s 3A were originally in the definition of "injury" before being moved to a separate section after the above authorities were decided. However, the words are identical.

Was there fault in the use or operation of the loader? 42The first issue is whether there was any fault (or, relevantly, negligence) on the part of Mr Whitehead in his use or operation of the loader. His Honour considered there was but did not particularise precisely what that fault was. There is no doubt that Mr Whitehead was negligent in the sense that there was a breach of his duty of care to the respondent in requiring him to mount the chipper for the purpose of attempting to tap the chute into position so that it became fully aligned with the sleeve. Is it appropriate to characterise that breach as one which was "in the use or operation" of the loader by Mr Whitehead? In other words, was his breach of duty or negligence the consequence of his manoeuvring the chute into position right up to the moment that the respondent sustained his injury? 43In my view, although with some hesitation, I consider that the answer to the question posed is in the affirmative. On the basis of the primary judge's findings it was the movement of the chute by operating the tines of the loader that caused it to separate from the sleeve and thereby strike the respondent. To that extent Mr Whitehead's negligence was manoeuvring the chute whilst the respondent was standing close by with the not insignificant risk that that manoeuvring might separate the chute from its partial connection to the sleeve thus allowing it to swing free on the chain attached to the tines and thereby strike the respondent. Any such manoeuvring involved the use or operation of the articulated portion of the loader. 44The real issue in the present case was whether the respondent's injury was a result of the driving of the loader (as distinct from its use or operation) and whether that injury was caused during the driving thereof. To that issue I now turn.

Was the respondent's injury a result of and caused during the driving of the loader? 45The meaning of "driving" was the subject of exposition by the High Court in Insurance Commission of Western Australia v Container Handlers Pty Ltd [2004] HCA 24; (2004) 218 CLR 89. The relevant provision of the policy in that case required that the injury to the plaintiff be "directly caused by, or by the driving of, the vehicle". Section 3A does not use the word "directly" or, in the present context, the word "caused", but requires the injury to be "a result" of the driving of the vehicle. From the authorities to which the Court was referred it would appear that the requirement that the injury be "a result" of the driving of the vehicle involves a somewhat narrower threshold than the use of the word "caused" in the Western Australian policy in Container Handlers. Nevertheless, in both the present case and Container Handlers the relevant legislation did not define "driving". 46At [52] of Container Handlers McHugh J referred to the debate in the Legislative Council of the Western Australia Parliament which indicated the word was to have its ordinary English meaning. His Honour then continued: 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 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. 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. (Citations omitted) 47At [153] Heydon J also considered the meaning of "the driving". He said: 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. 48Although there have been a number of authorities in the present area of discourse dealing with forklifts and cranes, the case most closely similar to the present is that of the Full Court of the Supreme Court of South Australia in Motor Accident Commission v ANI Corp Ltd (1997) 26 MVR 57. That case concerned injury to a plaintiff who fell from the back of a stationary semi-trailer while acting as an assistant to a fork lift driver whose task it was to move a quantity of steel frames from a stack in the employer's depot and load them on to the tray of the semi-trailer. Under the relevant legislation liability was limited to injury arising out of the use of a motor vehicle which was a consequence of the "driving of the vehicle". Cox J, with whom Lander J agreed, noted that it is clear ... that [the forklift operator] had brought the forklift alongside the semi-trailer and come to a stop, and had then lifted the load vertically in order to clear the tray, before the plaintiff fell. 49The evidence in that case was that while the forklift was loading the semi-trailer some minute movement backwards and forwards of the vehicle may have been incidental to the vertical lifting movement. The trial judge had held that if the incident occurred during a minute forward or backward movement, then it was in the course of "driving". 50In considering this issue, Cox J commented (at 62): I do not think, with respect, that s 99 requires that kind of factual microanalysis in a situation such as this. It is not just a question whether the forklift's driving wheels were turning at a critical time. No-one suggested that [the forklift operator] was not "driving" the forklift, as section 99 understands that expression, before he stopped it alongside the semi-trailer. However, once he was there and had started to raise the tines in order to place the stillages onto the tray, he was no longer driving the forklift, in my opinion, but simply using the vehicle as a loading device. His use of it did not cease to have an exclusive non-driving character simply because (if it was the case) there were interspersed between the raising and lowering of the tines, in the dominant activity of loading and at the same place, small shuffling movements of the forklift, backwards and forwards, as the driver deposited the stillages in their different positions on the tray. The top stillage fell only because of the way the forklift was operated in the course of loading the semi-trailer. In my opinion, the learned judge should have found on the evidence that the plaintiff's injuries were not a consequence of the driving of the forklift. 51Cox J considered his comments to be consistent with earlier decisions of the South Australian Full Court which recognised a need to distinguish between a vehicle's different functions, so that it may be driven on one occasion and used in a different mode immediately afterwards although possibly all within a single overall activity. His Honour did comment that there may be cases where a "meticulous fragmentation of a vehicle's operations will be unrealistic". In other words, his Honour recognised that it was possible for a vehicle to be driven on one occasion and used in a different mode immediately afterwards, even as part of a single overall activity. 52Amongst other cases the Court was also referred to Portlock v Baulderstone Hornibrook Engineering Pty Limited [2005] NSWSC 775; (2005) 44 MVR 147, a decision of Hoeben J. That case as well as the ANI case both involved vehicles which were clearly capable of being driven, but which had additional lifting mechanisms which could be operated either independently of, or concurrently with, driving. These authorities were recently referred to by Daubney J in Suncorp Metway. His Honour considered that those cases drew a clear distinction between the actual driving of the vehicle in the sense of locomotion and the operation of the lifting device independently of driving. 53It is true that in Suncorp Metway what was involved was a garbage truck which was brought to a stationary position beside a wheelie bin. At that stage no movement in the traditional sense of "driving" was intended and the driver of the truck had then engaged the mechanical arm of the truck in order to grab and raise the wheelie bin. Daubney J concluded that there was a clear distinction between on the one hand operating the garbage truck's mechanical lifting device and on the other driving the truck in the sense of actual control and management of the vehicle while it is moving. The driving of the vehicle had ceased, albeit temporarily. 54In the present case the respondent gave evidence, unsuccessfully challenged in cross-examination, that the loader was moving forwards when he was standing on the chipper. The evidence of Mr Whitehead was that the vehicle was stationary. Although the primary judge generally accepted the evidence of the respondent, he made no particular finding with respect to whether or not the vehicle was stationary. The evidence was that the vehicle was articulated and that although all four wheels were stationary, nevertheless the hydraulic system operated by the motor of the loader enabled the operator to manoeuvre the tines in various directions. The primary judge's findings as to the manoeuvring of the chute into position which included movement of the loader right up to the moment that the respondent sustained his injury was, in my view, a reference to the manoeuvring of the chute by way of the manipulation of the tines. 55Although the primary judge considered that sitting in the cabin of the loader and manoeuvring the tines in the manner in which he had found had occurred involved driving the loader notwithstanding that there was no rotation of the wheels, in my respectful view, he was incorrect. In particular, his Honour reminded himself of Mr Whitehead's evidence that he had to use all the manoeuvrability of the loader which would have included a movement of at least some of the front wheels in that task, "albeit in a stationary position". The movement of the front wheels referred to turning the wheels on their axis which in turn moved the tines laterally to one side or the other. Accordingly the primary judge did not, in my view, reject the evidence of Mr Whitehead that the vehicle was in fact stationary with the brake on when he manoeuvred the chute over the chipper in an attempt to align it with the sleeve. This was the position at all material times including when the chute was disconnected by whatever means from its limited connection to the sleeve thus allowing it to swing free and strike the respondent. 56I accept that in some cases such as the locomotion of a conventional motor vehicle (motor car or truck) the concepts of driving such a vehicle and operating it overlap to the point of complete coincidence. Thus as Heydon J observed in Container Handlers, a vehicle may be said to be driven from the moment its engine is started to the moment when the engine is turned off. But whether the two concepts coincide wholly or partially depends on the characteristics of the vehicle being considered. Thus in the present case, the loader was being operated when its tines were being manipulated but in my view was not being driven in any relevant sense if it was otherwise stationary. 57Accordingly, in my opinion the primary judge was in error in finding that at the relevant time when the accident occurred, the respondent's injury was a result of the driving of the vehicle or that it was caused during the driving of the vehicle. At that time, the loader was not being driven albeit that its articulated section was being operated. It follows that the respondent has not fulfilled the requirements of s 3A(1)(a).

Was there a collision or dangerous situation? 58Having found that the vehicle was being driven, the primary judge in the last two sentences of his reasons on liability found that there was a collision within the meaning of s 3A(1)(b). Although he was not prepared to find that the loader was running out of control within the meaning of s 3A(1)(c), he also found that "it was a dangerous situation caused by the driving of that vehicle" for the purposes of s 3A(1)(d). No reasons were given to support those conclusions. 59As I understand his Honour's finding that the respondent's injury was a result of a collision with the vehicle within s 3A(1)(b), it could only be based upon the chute colliding with the respondent knocking him to the ground. Underlying this finding, I assume, was the primary judge's earlier finding that the chute as well as the tines and the chain were effectively all part and parcel of the same vehicle as they were attached thereto. 60The appellant submitted that the respondent was not struck by the loader albeit he was struck, as the primary judge found, by the chute. Section 3A(1)(b) requires the respondent's injury to be the result of "a collision ... with the vehicle". Unless the chute was part of the loader, then s 3A(1)(b) is not engaged on the facts of the present case. 61In my view the chute was not relevantly part of the loader as a consequence whereof his Honour was in error in finding that the collision between the chute and the respondent fell within the provisions of s 3A(1)(b). Although there may well be cases where a load upon a truck might be regarded as part of the truck, in the present case no such connection can legitimately be made. 62In relation to s 3A(1)(d), his Honour held, without any explication, that driving the loader caused a dangerous situation. Section 3A(1)(d) can be engaged if a dangerous situation is caused by the happening of one or more of the events referred to in s 3A(1)(a), (b) or (c). In this case, his Honour relied on the event referred to in subpara (a) of the driving of the loader. In order for the dangerous situation to be caused by the driving of the vehicle, the vehicle could be being driven at the moment when the injury occurs but this is not necessarily required provided that the driving of the vehicle has created a dangerous situation which, in turn, results in the plaintiff's injury. 63In this case, for reasons which I have attempted to articulate, the loader was not being driven at the moment when injury to the respondent occurred. Although it was driven by Mr Whitehead from the position where the chute was on the ground for the purpose of being cleared of its blockage to a point where Mr Whitehead commenced manoeuvring the chute over the chipper so as to align it with the sleeve, the vehicle was thereafter essentially stationary and thus not being driven. 64The earlier driving of the vehicle also did not cause the dangerous situation which resulted in the respondent's injury. In my view, the dangerous situation was not caused by the driving of the vehicle but by the instruction given by Mr Whitehead to the respondent to mount the chipper for the purpose of tapping the chute with a sledgehammer. The driving of the vehicle brought the chute to a position over the chipper, but that was not in itself a dangerous situation. The manoeuvring of the chute over the chipper to a position where it was only partially connected to the sleeve did not involve driving of the vehicle and did not, without more, cause a dangerous situation. Only when Mr Whitehead instructed the respondent to mount the chipper and tap the chute with a sledgehammer was a dangerous situation created. That instruction is what created the dangerous situation and not the driving of the loader per se. Accordingly, in my opinion his Honour was in error in finding that s 3A(1)(d) was engaged.

Conclusion 65In my opinion, although his Honour was correct in finding that there was fault on the part of Mr Whitehead as the driver of the loader and that the respondent's injury was "in the use or operation" of the loader, he was in error in finding that the respondent's injury was the result of and caused during any of the matters referred to in sub-paragraphs (a), (b) or (d) of s 3A(1). It follows that the appellant's challenge to his Honour's findings succeeds with the result that the appeal must be allowed. 66I would therefore propose the following orders:

Appeal allowed.
Set aside the verdict and judgment for the respondent made by Robison DCJ on 22 March 2012 and in lieu thereof enter a verdict and judgment for the appellant.
The respondent to pay the appellant's costs of the proceedings at first instance and of the appeal but to have with respect to the latter a certificate under the Suitors Fund Act 1951, if otherwise qualified. 67PRESTON CJ of LEC: I agree with Tobias AJA.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 May 2013

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