(ii) immediately before the motor accident occurred, was capable, or would, following the repair of minor defects, have been capable, of being so registered."
6 The vehicle was not exempt from registration and was required to be registered for lawful road use in New South Wales. The issue was whether immediately before the accident it was capable of being registered following the repair of minor defects.
7 The vehicle was a 1961 International Scout 4WD. It had been registered until 29 March 1994, and although unregistered thereafter continued to bear the number plates from that registration. Mr Stephen Dean bought it as an unregistered vehicle in Lightning Ridge in 1999, intending to fix it up, register it and use it on four wheel drive expeditions. He did not do so, and later in 1999 sold it to a wrecker in Lightning Ridge.
8 The wrecker put the vehicle outside its yard for sale as a complete unit. Mr Willis bought it in early October 1999 and brought it to Goodooga. On 16 October 1999 he invited the respondent to accompany him on a drive to nearby Hebel. Both men were well affected by alcohol. The accident happened on the way to Hebel.
9 The first step was to identify the pre-accident defects in the vehicle material to registration. Of the lay and expert evidence of the condition of the vehicle the judge acted on that of Mr Dean, Mr Willis through his police record of interview, a police vehicle examiner who inspected the vehicle some time after the accident and provided a report, and Mr Neil Gillies, a highly qualified mechanical engineer who provided reports which included his assessment, from statements, the police vehicle examiner's report and a considerable number of photographs of the vehicle, of its likely condition before the accident.
10 The judge found -
"What Mr Willis said had to be done, taken in conjunction with the findings of the Police Vehicle Examiner and Mr Gillies, satisfies me that wiring to the lights had to be fixed, the locks to the doors had to be fixed and the seat belts had to be replaced. Apart from that the vehicle was in reasonable repair. In my opinion, if those repairs had been effected, the vehicle immediately before the accident would have been capable of being registered."
11 It is unnecessary to refer to the contest at the trial over other suggested defects or, save to the extent below, to the underlying evidence. The appellant accepted that these findings were open to the judge, and did not submit that he should have found more extensive material defects in the vehicle.
12 Mr Dean gave evidence that the tail-lights were not working and required the replacement of wiring. He said '[w]e had to rewire from where they run over something; they've just ripped wires out", and that there was "not much involved " in doing so. In the record of interview Mr Willis said that he believed that "electrics" needed to be fixed, and that when driving to Hebel he stopped to check for water and "adjusted the headlights … set the lights so that I had a bit of better vision". In his principal report Mr Gillies said that "high beam was mentioned by Layne Willis as not being in operation on the night of the incident", but I do not think that is correct. The police vehicle examiner's report is difficult to read, but seems to say under "electrical system" that "wiring damaged (indecipherable) N/S HL(?) dislodged from mounts wires still connected". If this referred to a dislodged headlight, it may have been dislodged in the accident. In finding that "wiring to the lights had to be fixed" the judge apparently meant repair of the wiring to the tail-lights.
13 Mr Dean gave evidence that the door latches were worn and were not latching properly when the doors were closed. He said that he could fix them by replacing them with handles taken from a F100 truck. Mr Willis' record of interview included -
"Snr Constable Elkins: I've further been told that in order to keep the doors of the vehicle shut you needed to tie them closed with a seat belt. Can you tell me anything about that?
Layne Edwin Willis: Once I did it to … that's the two places that had to be put from the chassy [sic] to the body, that would have solved that problem. That's according to the bloke that I bought it off, and that was my next job to get done - the two places put up from the … from the chassy [sic] to the … to the actual body, the … the hood area."
14 The police examiner's report said nothing of the door latches. Photographs of the vehicle after the accident showed the seat belt around the door handle of the near side door. In finding that "the locks to the doors had to be fixed" the judge was taking up the evidence of Mr Dean.
15 The police vehicle examiner's report said that one seat belt was serviceable but the other was "jammed in rest", and stated "no clasps located in vehicle". Mr Gillies took that to mean that the buckles of the seat belts to which tongues on the belts themselves connected were not present, and the judge appears to have done the same. Mr Dean said that there were clasps and he used the seat belts. Mr Willis' record of interview contained nothing more as to seat belts. Seat belts had not been required when the vehicle was originally manufactured in 1961, and for reasons he gave Mr Gillies was uncertain whether the vehicle's later history meant that seat belts were required. It is not clear why the judge implicitly held that they were, in his finding that "the seat belts had to be replaced".
16 The question then was whether the defects found by the judge were such that, within s 33(5)(b)(ii) of the Act, immediately before the accident the vehicle was capable of being registered "following the repair of minor defects".
17 The appellant's case before the judge had included that the vehicle could not be registered because it did not have an engine number, but the judge found that it did. There was no appeal in that respect. The judge otherwise found (this includes the finding earlier set out) -
"It was also contended that it could not have been so registered because there was so much work to be done to it, that the repairs could not properly be regarded as 'minor defects'. In my opinion, I am entitled to rely on the evidence of Mr Gillies that the repairs to be done were properly classifiable as 'minor defects'. Mr Dean's description of what had to be done, I have already said could be regarded as minor repairs. What Mr Willis said had to be done, taken in conjunction with the findings of the Police Vehicle Examiner and Mr Gillies, satisfies me that wiring to the lights had to be fixed, the locks to the doors had to be fixed and the seatbelts had to be replaced. Apart from that the vehicle was in reasonable repair. In my opinion, if those repairs had been effected, the vehicle immediately before the accident would have been capable of being registered."
18 The reference to Mr Dean's description and minor repairs was to Mr Dean's evidence as to the tail-lights and door latches, plus a windscreen wiper, as to which his Honour had earlier said "if that was all the work that was required to ensure registration, it would have to be regarded, in my opinion, as minor repairs".
19 The reference to Mr Gillies' evidence and minor defects was at least to the principal report of Mr Gillies, in which he said -
" Registration
With a chassis-type vehicle, provided proper steps are taken to replace components which are worn such as to affect acceptability of function, then an acceptable vehicle condition can be relatively readily obtained. The vehicle had not been registered for some years, but had been presumably serviced/fixed to the extent to at least keep it mobile even though it was nearly 40 years old, and that illustrates the ease with which such a chassis-type vehicle can be kept mobile. The steps which would have been needed to be taken to get it registered would have been replacement of any relevant mechanical items which had worn excessively (probably including the door latch) and electrical items which were not working (and high beam was mentioned by Layne Willis as not being in operation on the night of the incident). It is not known if complete seat belts were required to be fitted. The output arm on the steering box should be replaced by a standard one. All this was probably fixable moderately economically, with possibly some parts from a wrecker given the age of the vehicle, but in any case that reduces the cost.
Conclusion
The vehicle was mobile before the incident and generally was probably able to be made acceptable for registration requirements moderately economically as far as could be ascertained from the documents."
20 Mr Gillies' inclusion of the output arm on the steering box can be ignored, as the judge was not satisfied that the component was in a condition which would have prevented registration, but his Honour said that even if it would have done so "it would properly be regarded as a minor defect".
21 A number of grounds of appeal were directed to error in the judge's answer to the question earlier stated. The appellant's written submissions touched on most of them, but not all. At the hearing it became apparent that there was in truth one point in the appeal in this respect, and the appellant's counsel accepted that he would fail if the point was not made good. The point is conveniently seen against the following background.
22 When Mr Gillies' reports were tendered by the respondent objection was taken, on the ground that they were not relevant because Mr Gillies had applied an economic test to whether defects were minor defects. The judge suggested that that was a legal issue, with which counsel for the appellant agreed. The judge suggested that he receive the reports provisionally, with which counsel for the appellant also agreed. Mr Gillies was cross-examined at some length, mostly on matters not material to the point in the appeal.
23 The judge said -
"In essence what [Mr Gillies] said was that whether the car was examined by an authorised inspector or by RTA officials, the likely cost of fixing defects so that it could be registered would not be likely to be very expensive, as the necessary repairs would be minor. … I have reviewed his evidence, but having regard to the established facts, I see no reason to disagree with his opinions. He clearly is an expert and the opinions he expressed are relevant, reliable and acceptable.
I should add that objection was taken to his report on the ground that it suggested a test of whether a vehicle can be registered in accordance with sec 33 is an economic test. The true question, it was put, is whether the defects are minor, not how much they cost. I admitted the report provisionally. I do not agree that this is what the report suggested. The report considered all the known defects and Mr Gillies made it plain that he considered they were minor defects, which could be fixed for very little money. Having considered all the evidence and in particular the evidence of Mr Willis, Mr Dean and the vehicle examiner, I am of the opinion that his evidence is relevant, admissible and of probative value. I accept his expertise and his evidence."
24 The principal report would have been admissible for Mr Gillies' assessment of the condition of the car, even if the objection had otherwise been well founded. It would be difficult to find error in the admission of the reports when, for good reason and by agreement, they were dealt with in the way I have described. In any event, Mr Gillies did not in his principal report classify the repairs necessary for the vehicle to be registered as "the repair of minor defects", according to an economic or any other test. He said, as a matter of fact, that the vehicle could be made registrable moderately economically.
25 In his oral evidence Mr Gillies was asked in cross-examination about a suggested defect in the vehicle, although not one found by the judge, whether it would be "a major repair". He replied in the negative, saying that "It's really only from the look of it, something like a quarter of an hour job with a welder." The cross-examination did not otherwise invite classification of the repairs. Mr Gillies was asked about minor defects in re-examination -
"Q. Of the matters that you've outlined in your report, are all of those matters minor or some of them major?
A. That's why - that's partly why I didn't write my report and talk about minor repairs, because I don't know what the legal - what was meant in the law in relation to minor repairs.
HIS HONOUR: Q. What is a minor defect?
A. I mean, to me one of the things I did say was that, when a vehicle has been registered before and is being registered again - somebody is trying to - major repairs are more usually things like an engine that is simply blowing so much smoke or dropping so much oil that you have to replace it or that there is so much rust that it requires major repairs on rust. With a mechanical thing like this, each part is relatively easy to access and it's easy to replace if you're mechanically minded."
26 The point in the appeal was this. The appellant submitted that the judge erred because, in determining whether defects requiring repair to enable registration were minor defects for the purposes of s 33(5)(b)(ii) of the Act, regard should be had not solely or principally to the cost of repairing the defects, but to their significance for the safe operation of the motor vehicle. For example, it was said, if there was a defective connection in the steering mechanism which could be repaired in a short time at a small cost, it was nonetheless not a minor defect because of its potential for affecting the safe operation of the vehicle and its consequential potential for bringing serious injury or death. Repair of minor defects, it was said, was not the same as minor repair of defects. It was suggested that the statutory scheme making the appellant liable where motor vehicles were uninsured was intended to be protective of persons injured by "vehicles which were in a proper condition, which could be registered if the owner had followed his obligations and registered and insured them in the first place".
27 I do not think that this last suggestion contributes to the submission, since it says nothing as to the nature of the departure from proper condition. Persons injured by the fault of the owner or driver of an insured motor vehicle can recover damages even if the motor vehicle was defective, without regard to the minor or major nature of the defects. Safety-related defects may be part of the causative fault of the owner or driver, but they need not be. The statutory scheme is not all-embracing, since it excludes recovery by persons injured by the fault of the owner or driver of an uninsured motor vehicle where the motor vehicle should be registered and has defects which are more than minor defects. It excludes recovery in other circumstances also, but in Applin v The Nominal Defendant [2004] NSWCA 217 Hodgson JA, with whom Tobias JA and Cripps AJA agreed, said at [29] that although limits were placed on the appellant's liability it was -
" … appropriate to give weight to the overall purpose of giving persons injured by motor vehicles in motor accidents on roads access to insurance money; and it is of course to be remembered that the Nominal Defendant is, by s 39 of the MAC Act, given recourse against the owner and/or driver of the vehicle".
28 There is no criterion in s 33(5)(b)(ii) that the defects be or not be part of the causative fault of the owner or driver. It would be odd if the statutory scheme were to deny recovery in the case of an uninsured motor vehicle where the defects were serious in safety terms but could be repaired quickly and cheaply; if significance for safe operation were intended, some link with the causative fault of the owner or driver would be expected.
29 The word "minor" calls for an assessment of degree, without indication of the scale according to which the degree is to be assessed beyond the word "repair". "Repair" directs attention to difficulty and cost. Although this is not conclusive as to the scale, no words direct attention to a scale of safe operation of the motor vehicle.
30 Further, the simple word "minor" is used in the context of defects which may or may not have significance for the safe operation of the motor vehicle. The defects are those which prevent registration, and not all defects which prevent registration affect the safe operation of the motor vehicle. Mr Gillies referred to an engine blowing so much smoke that it must be replaced. Blowing excessive smoke is a defect preventing registration (see Road Transport (Vehicle Registration) Regulation 1998, cl 154 "visible emissions"). Only in a very extended sense is it safety-related. Replacing the engine is, however, in ordinary speech a major repair, and if the condition of the engine is a defect, it is aptly described as the repair of a major defect. Numerous other examples could be given of defects which prevent registration but are not safety-related.
31 In determining that the defects found by him were minor defects, the judge was plainly influenced by the economics of their repair. Moderate ease of repair no doubt goes with moderate cost. Mr Gillies referred also to acceptability of function and obtaining an acceptable vehicle condition. In my opinion, the judge did not err in the regard he had to the ease and relatively little cost of the repairs to the vehicle in determining whether the defects were minor defects, or in his determination that the defects he found were minor defects for the purposes of s 33(5)(b)(ii) of the Act.