33 In Toll Pty Ltd v Dakic [2006] NSWCA 58, the Court of Appeal considered the application of the MAA where an employee was injured when he was removing a trailer ramp after utilising the ramp to load utilities onto a semi-trailer. The manner of loading the utilities had caused a vehicle overhang that restricted the employee's physical access to the ramp. At [15], Giles JA held that there was no "defect" as the trailer could readily have been used in a manner that did not expose the employee to a risk of injury. At [155] - [160], Brownie JA held that the injury did not occur "during" the use or operation of the vehicle, was not a "defect" and was not a defect "in" the vehicle. Santow JA at [97] held that there was no relevant causal connection between any defect and the injury because the predominant, proximate or immediate cause of the injury was the employer's human intervention in creating an unsafe system of work. In relation to causation, Santow JA considered the two approaches to causation in Allianz and made the following observations.
"93 At [54], McHugh J disapproved of the use of "metaphysical concepts" such as "proximate cause" or "immediate cause", saying that, when determining causation under the Act, the task was to identify the factors that contributed to the injury and determine whether the injury was caused by a defect in the vehicle and not by some other factor. The injury was caused, as McHugh J explained at [60], not as a consequence of contact with or use of the (inanimate) loading mechanism. Rather it was caused by human intervention directing that the operation be done manually, though this was clearly unsafe. …
94 This is so whether one uses or eschews the language of " proximate cause ", or " immediate cause ". … according to Gummow, Hayne and Heydon JJ in Allianz , such terminology of proximate or immediate cause was appropriate for an insurance context under the Motor Accidents legislation. At [102] they concluded that: "' If, and only if' directs attention to notions of predominance and immediacy rather than to more removed circumstances ". On either basis, human intervention was the relevant cause and not the defect per se."
34 In the present case, there was no relevant "defect" in the vehicle. Neither the absence of a rear demountable guardrail nor the failure to mark the junction between the flat and sloping parts of the tailgate loader was a design fault. QBE failed to establish that either alleged deficiency was necessary to the safe use or operation of the vehicle. There was no evidence that a rear demountable guardrail was an available and practical option. There could have been demarcation of the junction between the flat and sloping parts of the tailgate loader, but the evidence did not establish that the absence of such demarcation was a "defect" in the sense that it was a design fault.