TOLL PTY LTD v DAKIC and ANOTHER

CATCHWORDS: STATUTORY INTERPRETATION - Whether definition of "injury" covers vehicle-loading and unloading operations under the Motor Accidents Compensation Act 1919 (NSW) ("MACA"). - NEGLIGENCE - Whether compensation received as a result of a back injury suffered by employee removing heavy trailer ramp in confined space due to vehicle overhang after ramp had been used to load utilities onto a semi-trailer was governed by the statutory insurance scheme under MACA or by the statutory scheme under the Workers Compensation Act 1987 (NSW) - Whether injury caused by an unsafe system of work - Whether injury the result of and caused during the use or operation of a vehicle by a defect in that vehicle - Whether any defect in the vehicle in its use or operation - Discussion of causation. - PROCEDURE - Issue estoppel. - COSTS - Whether Bullock order should have been awarded

Motor Accidents Compensation Act 1999 s3 LEGISLATION CITED: Road Transport (General) Act 1999 Workers Compensation Act 1987 (NSW) s40

Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26, (2005) 79 ALJR 1079 Almeida v Universal Dye Works (No. 2) [2001] NSWCA 156 AMP General Insurance Ltd v Mayne Nickless Ltd (2000) 50 NSWLR 61 Blair v Curran (1939) 62 CLR 464 Canterbury Municipal Council v Taylor (No. 2) [2002] NSWCA 96 Egri v DRG Australian Limited [1988] 19 NSWLR 600 Government Insurance Office of NSW v R J Green & Lloyd Pty Ltd (1966) 114 CLR 437, [1966] HCA 6 House v R (1936) 55 CLR 499 Insurance Commission (WA) v Container Handlers Pty Ltd (2004) 218 CLR 89, (2004) 78 ALJR 821 Kuligowski v Metrobus (2004) 208 ALR 1 CASES CITED: March v Stramare (E & M H) Pty Ltd [1990-91] 171 CLR 506 Mayne Nickless Ltd v Symen [2001] NSWCA 292, (2001) 34 MVR 18 Medlin v State Government Insurance Commission (1994-1995) 182 CLR 1 Ramsay v Pigram (1968) 118 CLR 271 Somodaj v Australian Iron and Steel Ltd (1963) 109 CLR 285 Sullivan v Moody (2001) 207 CLR 562 Sved v Council of Municipality of Woollahra (1998) NSW Conv R 55-842 Tambree v Travel Compensation Fund and Ors [2004] NSWCA 24 Travel Compensation Fund v Tambree t/as R Tambree and Associates (2006) 80 ALJR 183 Walsh v Whiteley (1888) 21 QBD 371 Zurich Australia Insurance Ltd v CSR Ltd (2001) 52 NSWLR 193, [2001] NSWCA 261

TOLL PTY LTD (Appellant) PARTIES: Nedelko DAKIC (First Respondent) IAG LIMITED (trading as NRMA INSURANCE LTD formerly known as SGIO Insurance) (Second Respondent)

R W SETON, SC/ R I HARRINGTON (Appellant) COUNSEL: G O'L REYNOLDS, SC/ J O ANDERSON (First Respondent) R R STITT, QC/ I L GRISCTI (Second Respondent)

Leigh Virtue & Associates (Appellant) SOLICITORS: Martin Bell & Co (First Respondent) Sparke Helmore (Second Respondent)

LOWER COURT FILE NUMBER(S): DC12766/01; 107/04(MA List)

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40110/05 DC 12766/01 DC 107/04

GILES JA SANTOW JA BROWNIE AJA

28 MARCH 2006 TOLL PTY LIMITED v Nedelko DAKIC & 1 Ors Judgment 1 GILES JA: The facts are described in the reasons of Santow JA, which I have had the advantage of reading in draft. 2 I agree with his Honour's reasons for holding that Mr Dakic was not estopped by McGrowdie AJ's determination in the Compensation Court proceedings from denying an ability to earn $750 gross per week. (The tender of McGrowdie AJ's reasons could have been received, with a substantive decision rather than an evidentiary ruling, but that is of no consequence in the result.) I also agree with his Honour's reasons for holding that the trial judge's discretion appealably miscarried in the judge's refusal of a Bullock order. 3 While I concur in the dismissal of the appeal in relation to whether there was an "injury" as defined in s 3 of the Motor Accidents Compensation Act 1999 ("the Act"), I respectfully take a different path to that result from the path taken by his Honour. 4 It is convenient to repeat the definition of "injury", relevantly - " 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's running out of control, or (iv) such use or operation by a defect in the vehicle, … " 5 As at August 2000 "motor vehicle" was defined in the Act to mean a motor vehicle or trailer within the meaning of the Road Transport (General) Act 1999. Following that through, a motor vehicle was a vehicle built to be propelled by a motor that formed part of the vehicle; a trailer was a vehicle built to be towed, or towed, by a motor vehicle, but did not include a motor vehicle being towed. "Vehicle" was relevantly defined as any description of vehicle on wheels. The motor vehicle in the present case was the trailer of the semi-trailer, taken separately from the prime mover. 6 Here any fault of Toll, the owner of the trailer, was in exposing Mr Dakic to unnecessary risk of injury by requiring or permitting him to load an overhanging vehicle and then remove and stow the ramps by taking their full weight. The risk could have been avoided either by not loading an overhanging vehicle (no vehicle or a shorter vehicle), by using lighter ramps or a different system of ramps and their removal and stowage, or by providing assistance so that the removal and stowage of the ramps was not left to Mr Dakic alone. 7 I am content to assume that there was injury caused by the fault of Toll in the use or operation of the trailer, the use or operation being the loading operation in which Mr Dakic was engaged; this is not the case to decide whether or when loading and unloading is use or operation of a motor vehicle (cf Allianz Australia Insurance Ltd v GSF Australia Pty Ltd (2005) 79 ALJR 1079 at [30,], [80]-[87]). 8 It was necessary that, as well, the injury was a result of and caused during one of subparas (i) to (iv) in the definition of "injury". None of subparas (i) to (iii) applied. The grammar is challenging in the application of subpara (iv), but when parsed out it was necessary that the injury was (a) a result of the use or operation of the trailer as to which there was the fault in the use or operation which caused the injury; and (b) caused during that use or operation of the trailer by a defect in the trailer. This is consistent, I think, with Allianz Australia Insurance Ltd v GSF Australia Pty Ltd at [39]-[40], [94]. 9 For the reasons which follow, in my opinion the appeal fails at the point of "caused … by a defect in the trailer". It may be that it fails at other points, but that is sufficient for the purposes of the appeal. 10 There is a question whether, particularly in the light of the definitions earlier described, the ramps were part of the trailer. A negative answer would not necessarily mean that there was not a defect in the trailer. The defect must first be identified. For present purposes, I assume that the ramps were part of the trailer. 11 In Allianz Australia Insurance Ltd v GSF Australia Pty Ltd there was a defect in the vehicle; the T-bar mechanism was not working. The defect did not cause the injury, however, which was held to have been caused by the system of work adopted to deal with the problem presented by the defective T-bar mechanism, and in particular by the direction to use a crow-bar to lever the containers: at [103] per Gummow, Hayne and Heydon JJ; see also at [58]-[62] per McHugh J. As McHugh J pointed out at [64], in distinguishing Zurich Australia Insurance Ltd v CSR Ltd (2001) 52 NSWLR 193, this was an instruction to use the vehicle in a manner other than its intended use and a way which did not involve the use of the defective T-bar mechanism. In the present case there was no equivalent to the defective T-bar mechanism. Everything was working. What was the defect in the trailer? 12 In Zurich Australia Insurance Ltd v CSR Ltd Spigelman CJ considered in detail what could be a defect, Mason P and Handley JA agreeing. There could be a defect if something was unfit for the purpose for which it was designed or the use for which it was intended: at [46]. A vehicle was not defective only because its operation in a particular manner might lead to injury, but the manner in which it was intended to operate might determine whether there was a defect in the vehicle: at [68]. The facts in that case were quite specific, the ramp of the trailer being fitted with a single handle on the outside and "the absence of provision for anything more than one handle, being on only one side of the ramp, indicat[ing] that the ramp was designed for circumstances in which only a single worker conducted the lift" (at [40]). The trailer was so designed that it was intended to be used by one person lifting the ramp, which exposed the person to risk of injury, and there was a defect in the vehicle (at [70]). 13 The facts of the present case, do not, in my view, lend themselves to the same reasoning. Nothing about the trailer required that the loading operation included loading an overhanging vehicle, or if an overhanging vehicle was loaded that one person lifted the ramps in the manner Mr Dakic lifted them. There are some difficulties with the notion of intended use, but they need not be explored; there was no apparent single means of performing the relevant part of the loading like the handle on the ramp in Zurich Australia Insurance Ltd v CSR Ltd. Commercial exigencies may have meant that not infrequently the trailer was loaded with an overhanging vehicle and one person in the position of Mr Dakic then lifted the ramps as he did. But the fact that the configuration of the trailer allowed that to occur did not mean a defect in the trailer. It could be used without the relevant risk of injury by not loading an overhanging vehicle or by providing assistance to the person in the position of Mr Dakic. 14 In Mayne Nickless Ltd v Symen (2001) 34 MVR 18 the defect in the trailer was the torn strap holding the ramp to the trailer, held to be an integral part of it. It broke during loading, and injury was caused; nothing of that kind occurred in the present case. The Court distinguished AMP General Insurance Ltd v Mayne Nickless Ltd (2000) 50 NSWLR 61, in which it was held that the slippery surface of the floor of a truck due to extraneous substances on the floor was not a defect in the truck. There was no question of fitness for a designed or intended purpose. 15 Each case depends on its own facts, but must be decided with the guidance of Allianz Australia Insurance Ltd v GSF Australia Pty Ltd, taking from the legislative history that the definition of injury was to be "tightened … by reference to its cause": per McHugh J at [53]; see also per Gummow, Hayne and Heydon JJ at [80]. Causation comes into identifying a defect, because the putative defect must have caused the injury, and the defect had to be "in" the trailer. Even on the approach of fitness for a designed or intended purpose in Zurich Australia Insurance Ltd v CSR Ltd, I do not think there was a defect in the trailer. It could readily have been used without exposing Mr Dakic to the risk of injury. 16 At the hearing I joined in the Court's refusal of leave to reconsider Zurich Australia Insurance Ltd v CSR Ltd. I did so because it was a recent decision of this Court, noted in Allianz Australia Insurance Ltd v GSF Australia Pty Ltd at [31]-[32] but in any event functionally different and not really coming into question in the present case. These reasons confirm my view that there is no present occasion to reconsider it. 17 I agree with the orders proposed by Santow JA. 18 SANTOW JA: INTRODUCTION The central issue in this appeal concerns a question of statutory interpretation. It puts in issue once again the reach of the definition of "injury" to cover vehicle-loading and unloading operations under the Motor Accidents Compensation Act 1999 (NSW) ("MACA"). Essentially the question is whether a back injury suffered by an employee in course of an unsafe system of work when manually lifting a heavy ramp earlier used to load a vehicle was, as prescribed by that definition, an injury which was a result of and caused during the use or operation of a vehicle by a defect in that vehicle. 19 The accident was suffered when the employee concerned was removing a trailer ramp after it had been used to load utilities onto a semi-trailer. Was his compensation governed by the statutory insurance scheme under MACA, as the appellant employer and truck-owner contends? Or was his compensation governed by the statutory scheme under the Workers Compensation Act 1987 (NSW) ("WCA"), as the trial judge Naughton DCJ determined in favour of the employee? 20 The injury indubitably involved negligence on the part of the appellant Toll Pty Limited ("Toll") in prescribing an unsafe system of work. This was because the particular loading configuration to accommodate the number of utilities required to be loaded on to the semi-trailer necessarily gave rise to a vehicle overhang. That in turn restricted the employee's physical access to the ramp, when he was manually removing it to store it away after the loading process was otherwise complete. Toll was both employer and owner of the semi-trailer. Its employee was Mr Nedelko Dakic, the first respondent. NRMA was insurer under MACA and the second respondent. 21 The ramp for loading and unloading purposes could be temporarily attached to the rear of the trailer and was so attached in this case. After use the ramp was able to be stored on the bottom deck of the trailer in a position specially fitted for that purpose, though the ramp could also be carried on other similarly equipped trailers so as to be in that sense interchangeable. 22 The trial judge concluded that this was no "injury" within the meaning of that term in s3 MACA, on various grounds, each of which are challenged on appeal. 23 Thus it was said the trial judge erred in: (a) finding that the respondent employee, Mr Dakic, had not suffered an " injury " as defined by s3 MACA , (b) finding that Mr Dakic's injury was caused by the negligent overloading of the trailer as opposed to a defect in the vehicle in its use or operation for purposes of the definition of "injury" in s3 MACA in para (a)(iv) thereof, (c) finding that the trailer had been overloaded, (d) disallowing questions going to the issue of the proper purpose of the trailer's design, namely whether or not the trailer was designed to have vehicles overhang its rear when occupying a particular deck, (e) ignoring Mr Dakic's evidence that probably 30% of the time when he carried a full load, the car on the relevant deck of the trailer would have its tail or end hanging out beyond the end of the trailer, and (f) dismissing the appellant Toll's cross-claim against the MACA insurer, NRMA, instead of ordering NRMA to indemnify Toll in respect of any judgment obtained by Mr Dakic against Toll, together with costs. 24 The respondents for their part rely particularly on the recent decision of the High Court in Allianz Australia Insurance Ltd v GSF Australia Pty Ltd (2005) 79 ALJR 1079 as further support for the trial judge's narrower reading of the definition of "injury" in s3 MACA, and his characterisation of the injury and its causation as a workplace injury, governed by the Workers Compensation legislation. That decision post-dated the trial judge's reasons but was said to provide strong support for them. 25 There are further issues concerning the trial judge's assessment of past economic loss, for purposes of determining modified common law damages under Pt 5 WCA. The trial judge rejected the tender of, and declined to have regard to, McGrowdie AJ's reasons for judgment in the Compensation Court proceedings between Mr Dakic and Toll (No. 53272/01). This was notwithstanding that they arose out of the same injury and accident. 26 McGrowdie AJ's determination was for a distinct purpose, namely in relation to determining Mr Dakic's entitlement to weekly payments of compensation upon the basis of a partial incapacity for work from May 2001 and continuing pursuant to s40 WCA. In the course of that assessment he found Mr Dakic's ability to earn, post injury "as being $750 per week in the same or similar work that he is presently engaging in". 27 Toll unsuccessfully sought to tender McGrowdie AJ's reasons and rely upon those reasons as an issue estoppel. In consequence, Toll contends that the trial judge erred in failing to hold that Mr Dakic, by reason of McGrowdie AJ's reasons for judgment, and for the purpose of past economic loss only, was estopped from denying he had an ability to earn $750 gross per week ($645 per week net) from 11 May 2001 to 3 November 2003. The trial judge attributed to Mr Dakic a lesser $545 net per week. 28 Mr Dakic and NRMA also rely on a Notice of Contention to the effect that: (a) Mr Dakic's injury did not result from the owner's or driver's use or operation of the vehicle, and (b) there was no "defect in the vehicle" for purposes of that expression in the definition of "injury" in s3 MACA in para (a)(iv) thereof. 29 The first and second respondents seek leave to challenge the correctness of Zurich Australia Insurance Ltd v CSR Ltd (2001) 52 NSWLR 193. This is insofar as that case decided that a vehicle contains a "defect" within the meaning of the definition of "injury" if it contained machinery which was not fit for the purpose for which it was designed or the use for which it was intended; at [46] per Spigelman CJ. That leave was declined, with reasons to be given later. 30 Finally, there is a cross-appeal by Mr Dakic against the trial judge's refusal of his application for an order that Toll pay the costs of NRMA by way of a Bullock order.

SALIENT FACTS 31 These facts are essentially undisputed on appeal and are derived from the judgment at first instance. 32 Mr Dakic was employed by Toll as a driver of double-decker motor vehicle transporter to semi-trailers. Toll's depot was at Greenacre. 33 It was part of Mr Dakic's job to load and unload motor vehicles onto and off such semi-trailers. Mostly they were luxury cars. Sometimes, as on this occasion, they were single and dual cab utility trucks. 34 On the night of 10 August 2000, Mr Dakic had been directed to collect a load of six utilities from the Glebe Island Terminal and take them on a vehicle transporter to Ingleburn. 35 The vehicle transporter has seven stations ("decks") for carrying vehicles, four on the top deck (which could be hydraulically lowered), and three on the bottom deck. Deck 7 was the station on the bottom deck closest to the rear end of the trailer (Red, 43P-Y). 36 On the night of the accident, Mr Dakic lowered the top deck, drove four utilities onto it, secured them and raised the deck. He then loaded two utilities onto the two stations at the rear of the lower deck (the station closest to the cab being too small to hold a utility). The loading process utilised a ramp or ramps, as explained below. This loading configuration left an overhang of about one metre of the back of the last utility (in deck 7) beyond the back of the trailer. No other loading configuration would have accommodated the directed load of utilities (Red, 44C-T). 37 I interpolate here that the evidence from Mr Dakic was that around 30% of the time, when carrying a full load on the truck, the car on deck 7 would have its tail or end hanging out beyond the end of the trailer (Black, 59.6-.21). 38 It was the overhang of the last utility on the night which created an access difficulty for the purpose of disengaging the loading/unloading ramps from the back of the trailer and removing them from underneath the overhang (Red, 44U-45E). 39 The ramps were made of steel. Each one weighed almost 34 kg. Each was 2.7 metres long. One end of each ramp was fitted with a pair of round steel bar-hooks. These engaged in round holes in the top rear edge of the lower deck of the trailer (Red, 45E-M). 40 During journeys to and from load collection and delivery locations, it was usual practice for Mr Dakic and other semi-trailer drivers employed by Toll to store one ramp edgeways on each side of the bottom deck of the trailer, the bottom edge of the ramp in a channel welded to the side of the trailer. Each ramp would also be secured by means of a rubber strap or steel chain (Red, 45N-V). Ramps could be disengaged and removed entirely. They were interchangeable with (some) of the other vehicle transporters though in practice were used on particular vehicles. 41 To pack away the ramps, Mr Dakic would usually approach each ramp at its junction with the back of the truck and then disengage the ramp by lifting the end so that the hooks came out of the holes. The ramp, with bottom end still on the ground, would then be rolled over onto its edge and then slid sideways into the channel on that side of the trailer (Red, 45Y-46N). 42 Removing and stowing away the ramps in that manner caused no reasonably foreseeable risk of injury. Mr Dakic had performed that operation many times daily, or almost daily, since his employment with Toll began on 13 February 1998 (about 2¾ years) (Red, 46O-S). 43 I turn now to the immediate circumstances of this accident. It happened between 8pm and 9pm after Mr Dakic had completed loading the six utility trucks but before he had entered the driver's cab of the semi-trailer to drive it away. At the time of the accident Mr Dakic was, to use his own words, "packing up" to drive away from the terminal to the delivery destination at Ingleburn (Red, 42D-I). 44 Because of the overhang of the vehicle on deck 7 on this occasion, Mr Dakic was unable to follow the usual (safe) method of removing and stowing away the ramps. He could not get as close to the junction between the ramps and the truck as he otherwise would (Red, 46T-X). 45 To remove the first ramp, Mr Dakic, at a distance of about one metre behind the back of the trailer, straddled the ramp between his legs. He was slightly bent forward. He lifted the ramp and pulled the attached two hooks out of the holes on the end of the trailer. The end of the trailer was about 40-50cm above the ground. Mr Dakic's lift brought the top end of the ramp to about 20cm above the trailer and also brought the other end of the ramp, behind him, off the ground (Red, 47F-M). 46 Once he had so lifted the ramp, Mr Dakic moved it backwards, about 50cm. In that position, the ramp was underneath and about halfway along the length of the overhang of the utility on deck 7 (Red, 47N-R). 47 Mr Dakic was now holding the full weight of the ramp with both of its ends off the ground, supported only by his hands (Red, 48D-F). 48 As Mr Dakic attempted to turn the ramp onto its side by twisting his body to the left, he felt a severe sharp pain in his lower back. The pain immediately extended down through his left buttock into the back of his left leg as far as his foot (Red, 47S-48D). 49 On 6 April 2001, Mr Dakic was dismissed from Toll on the ground that he was medically unfit to work for Toll. 50 Mr Dakic did not resume any type of work until 15 July 2003, at which time he commenced employment as a part-time security officer at Centrepoint Tower. He is still working in that job. 51 Toll, through its workers compensation insurer, has paid weekly workers compensation to Mr Dakic since the date of the accident, including medical expenses. It did so voluntarily until 11 May 2001. 52 Mr Dakic then commenced proceedings in the Compensation Court for continued payment of weekly compensation and medical expenses. 53 On 3 November 2003, the Compensation Court (McGrowdie AJ) made an award in favour of Mr Dakic for continuing compensation and medical expense payments from 11 May 2001, on the basis of partial incapacity for work. Those payments are still continuing. 54 In proceedings commenced in 2001, Mr Dakic made a claim for modified common law damages under Pt 5 WCA. He sued Toll on the basis that, as his employer, it had been negligent in failing to provide a safe system of work and suitable gear and equipment to enable Mr Dakic to perform his work. 55 Toll by way of defence alleged that any injury occurred in the use or operation of a motor vehicle, by reason of a defect in the vehicle, such that the injury fell within s3 MACA. If so, damages would be assessed under Ch 5 MACA and would be lower than under WCA. 56 Toll cross-claimed against the second respondent, NRMA, the CTP insurer of the semi-trailer, alleging breach of the contract of insurance by refusal to indemnify Toll. 57 Mr Dakic also commenced motor accident proceedings against Toll in August 2004, to which NRMA applied to be joined and was joined as a defendant pursuant to s79 MACA. 58 Both proceedings were heard together. NRMA filed a cross-claim against Toll seeking contribution or indemnity for any verdict against it.

THE RELEVANT LEGISLATION 59 Section 3 of the Motor Accidents Compensation Act (1999) defines injury in these terms, sub-paragraph (iv) being particularly relevant: " 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's running out of control, or (iv) such use or operation by a defect in the vehicle, ….."

THE PRIMARY JUDGMENT 60 The trial judge made various findings concerning liability, damages and costs which I set out below:

Liability 61 In the physical position in which Mr Dakic was placed, it was foreseeable that Mr Dakic would suffer back injury (Red, 48I-L). 62 The trial judge considered that two statements made by the manager of Toll in an incident report constituted an admission by Toll that the cause of Mr Dakic's accident was not a defect in the semi-trailer or in the ramps, but in the directed overloading of the bottom deck of the semi-trailer (Red, 49K-O; see also Red, 48W-49J). 63 That admission supported, but did not dictate, the trial judge's ultimate finding that Mr Dakic's injury was not caused by any defect in the vehicle. The judge would still have made this finding even without Toll's admission (Red, 49O-S). 64 The trial judge found that there was no defect in the semi-trailer even if the ramp was to be regarded as part of that vehicle. (There was no issue that the trailer was a motor vehicle for the purposes of MACA.) (Red, 51I-O). 65 The trial judge did not find it necessary to decide whether the ramp was to be regarded as part of the semi-trailer, but had it been necessary, he would have found that it was not. Both Zurich Australian Insurance Ltd v SCR (supra) and Mayne Nickless Logistics v Symen [2001] NSWCA 292 (2001) 34 MVR 18 were said to be distinguishable: (a) In Zurich , the loading ramp was permanently fixed to the back of the trailer, and the Court of Appeal held that it was not negligent use of a vehicle otherwise fit for the purpose or use for which it was intended which caused the accident, whereas here the trial judge found it was. (b) In Mayne Nickless, the Court of Appeal held that a strap permanently fixed to the back of a trailer, into which the ramp slotted, and which tore, causing the ramp to fall, was part of the trailer and was defective, such that MACA was applicable (Red, 51P-J22). 66 In the present case, the defect was not a broken part or malfunctioning component of the subject vehicle. The only defect was in the "operation in a particular manner" of the subject vehicle. That was by overloading the bottom deck of the trailer to such an extent that injury of the type that occurred was foreseeable (J, 22). 67 Because that overloading was directed by Toll, and caused Mr Dakic's injury, Toll was liable in negligence to Mr Dakic, in its capacity as Mr Dakic's employer. Toll, as employer, failed in its duty to take reasonable care to avoid exposing Mr Dakic to an unnecessary risk of injury (J, 22). 68 In directing Mr Dakic to overload the trailer, Toll was in breach of the 1990 National Code of Practice for Manual Handling, which provides that: (a) There shall be no obstruction when moving objects, (b) The back should not be twisted or bent sideways (J, 22-Red, 54O). 69 The proper way to have avoided the problem was not to have so overloaded the trailer that injury of this type was foreseeable. This would not have presented any unreasonable difficulty. It just meant that one less utility should have been loaded onto the trailer (Red, 54Y-55N). 70 The trial judge did not find any contributory negligence. It was not possible, having regard to the overhang of the utility and the position of the ramp, for Mr Dakic to bend his knees and hold his back straight. In any event, the judge was not satisfied that it would have avoided the injury (Red, 55P-56H).

Damages 71 The only dispute as to damages is in relation to past economic loss. 72 The trial judge found that the workers compensation award made on 3 November 2003 in the Compensation Court did not operate as an issue estoppel in respect of the quantum of damages for economic loss. The workers compensation payments were made pursuant to statutory provisions in the WCA which did not apply to the quantification of modified common law damages pursuant to Pt 5 of that Act (Red, 59V-60C). 73 The trial judge found that Mr Dakic could be working and earning about 50% more than he was and that he could have been doing so since 10 February 2001. He found that Mr Dakic's work capacity was $542 net a week (Red, 63C-G). 74 The trial judge awarded $60,112 for the period 10 February 2001 to 31 January 2005 and for total past economic loss $80,000 (Red, 63K-N).

Costs 75 The trial judge declined to make a Bullock Order at the behest of Mr Dakic whereby Toll had to pay the costs of NRMA payable by Mr Dakic. This was on the basis that the trial judge was not satisfied on the material before him that there was anything which Toll as appellant did which in substance caused the need for Mr Dakic as plaintiff to bring the second proceedings (No. 107/04). In those proceedings, both Toll and NRMA were defendants, the latter's interest being as the CTP insurer under MACA. 76 The trial judge had regard in particular to the statutory declaration of Mr Dakic made on 4 March 2003. It stated the reason for the institution of the second proceedings. This was to the effect that Mr Dakic was advised by his solicitor to lodge a motor accidents claim. He had not lodged a claim earlier because it had not occurred to him that his work accident could be characterised as a motor vehicle accident. That statutory declaration makes no mention about Toll's pleading of the MACA defence (Red, 67L-Q and see also Red, 34E-K, 36C-37K). 77 The trial judge therefore ordered Mr Dakic to pay NRMA's costs, but did not order that Toll pay the costs he had to pay to NRMA (Red, 67S-T). 78 That determination is challenged by Mr Dakic on appeal. Essentially, Mr Dakic's contention is that, but for Toll taking the position it did that no claim could be brought by reason of MACA, Mr Dakic would not have started those proceedings at all. I shall elaborate later on the reasons why I agree with that contention.

DISPOSITION 79 In answering the question as to whether there was an "injury" within s3 MACA, it is useful to break up the elements that arise where sub-paragraph (iv) of the definition of "injury" is, as here, the only possible basis for so concluding. The injury must, in a sub-paragraph (iv) situation, satisfy three conditions, the first in three parts overlapping with the third. The injury must be: (a) (i) caused " by " the fault of the owner (or driver); (ii) " in " the use or operation of the vehicle; and (iii) caused "during" that use or operation; (b) it must also be a result of and caused " by " a defect in the vehicle, and (c) it must also be as "a result of" such use or operation.

Defect in the vehicle 80 Answering whether a defect is "in" the vehicle (element (a)(ii)) necessarily requires consideration of how the vehicle "is intended to operate", as the following passage in Zurich (supra) from the judgment of Spigelman CJ bears out: "[67] The emphasis given by the High Court in Metcalf , and in the English authorities, to the fitness for the use to which the machinery etc is intended to be put is, in my opinion, an appropriate perspective from which to approach the question of a "defect in the vehicle" for the purposes of the Motor Accidents Act . The statutory context, like that of the English Employers' Liability Acts, is compensation for personal injury arising from the fault of a person in control of the circumstances in which machinery is operated.

[68] The defect must be " in " the vehicle. A vehicle is not "defective" only because its operation in a particular manner may lead to injury. However, the manner in which it is intended to operate may determine whether there is a "defect" " in " the vehicle." 81 In Zurich, the ramp was part of a trailer attached to a truck where the trailer had been custom-built to the requirements of the owner for purposes of carrying a roller. Injury resulted from the plaintiff raising the ramp onto the trailer of the truck manually. 82 Here, one may similarly accept that the ramp is a sufficiently integral part of the semi-trailer to be treated as incorporated in the truck. This is so though the ramp was detachable and capable of being used interchangeably with other ramps that were suitable for the truck in question. But what is important is that the loading operation here described is not limited to lifting of the ramp. It also includes the process of using or operating the vehicle with the ramp attached in order to load utilities onto the truck and then to remove the ramp. In that sense there is a continued use or operation of the vehicle encompassing the loading and the storage of the ramp. 83 If one then asks the question what was the intended use or operation of the vehicle for purposes of ascertaining whether there was a defect in the vehicle, that necessarily encompasses the whole process of loading and removal of the ramp. However, in Walsh v Whiteley (1888) 21 QBD 371 at 378 Lindley LJ and Lopes LJ said that "it must be a defect in the original construction or subsequent condition of the machine rendering it unfit for the purposes to which it is applied when used with reasonable care and caution, and a defect arising from the negligence of the employer" [emphasis added]. 84 Spigelman CJ in Zurich by contrast observed in relation to whether there was such a defect that "the distinction between that 'defect' and 'negligent user' may not always prove helpful, as many sets of facts are capable of being characterised in both ways." I respectfully agree. Here we know that the system of work was inherently unsafe, insofar as it involved the practice, on around 30% of occasions, of there being an overhang from the truck. That in turn necessitated not the safe way of moving the ramp (available in the other 70% of cases) but the unsafe way of manually moving the ramp from a position where the ramp has to be straddled between the legs of the employee. 85 Two competing characterisations of the relevant circumstances can be made: (a) the intended use of the ramp encompassed its employment in around three cases out of ten where the ramp was inherently dangerous to lift manually to put away, so bringing about a defect in the vehicle, in its intended use or operation, or (b) the ramp itself was not inherently unsafe but rather there was an unsafe system of work which, on around three occasions out of ten, required that the ramp be lifted in a straddle position with its inherent dangers. 86 When it comes to identifying whether there was a defect in the vehicle whereby injury was caused (element (b) in the three-part definition of "injury" above) it is the first characterisation that matters. When, however, it comes to the other necessary causes of the injury (elements (a)(i) (injury a fault of owner) and (c) (injury result of such use or operation) I consider that it is the second characterisation that matters. One may accept that there was a defect in the vehicle in its (intended) use or operation, whether or not that use or operation was negligent. But it by no means follows that the injury was a result of and caused by that defect (element (b)) as distinct from being a result of and caused by the employer's negligence (cf element (a)). 87 Such defect must be not only in the vehicle, but in its (intended) use or operation. I am careful to remind myself that here the vehicle is not the ramp per se but the vehicle incorporating the ramp. It is fallacious to argue from the fact that the ramp may be treated as an integral part of the vehicle, though capable of being removed or interchanged, to treating the defect as a defect in the ramp isolated from its role in the relevant use or operation of the vehicle. My earlier exegesis of the definition of "injury" requires that one look at these elements holistically in the context of the (intended) use or operation of the vehicle incorporating the ramp. 88 The evidence bearing on this question is decidedly skimpy. However, some matters are relatively clear. First, the loading configuration with its overhang of about 1 metre off the back of the last utility beyond the back of the trailer was not per se dangerous, assuming that the right equipment had been available to permit the ramp to be removed without risk of the injury that occurred. It would be quite wrong to describe the situation as one of "overloading". A level of usage involving overhang on 30% of occasions suggests that the "intended use" or operation of the vehicle (including the ramp) would encompass such an overhang. 89 The evidence is deficient as to the manufacturer's intended use of the ramp. The onus of establishing his case necessarily falls upon the plaintiff and would include this element. That said, the relevant information must be primarily with Toll. One is reduced to speculation as to what the manufacturer's intention concerning the ramp and its contemplated use might be. What we do know is that the storage of the ramp on the trailer was the subject of some specific mechanical adaptation. But we simply do not know whether the manufacturer was in any way informed about the intended use of the ramp for loading purposes. 90 It is therefore misleading to pose the question as to whether the manufacturer would have intended the ramp to be used in loading an overhanging vehicle, knowing that moving it away afterwards by hand was inherently dangerous. In the absence of any such evidence concerning the manufacturer, I would not be prepared to draw an inference that the manufacturer had any specific intention as to that particular use of the ramp. I would however be prepared to infer that the manufacturer simply intended that the ramp be used in conjunction with loading and unloading operations without regard to whether or not there was an overhang. That is a reasonable inference since it would be unlikely the manufacturer would be involved in the precise method for loading and unloading. 91 Other cases are unlikely to assist in terms of their factual elements, save insofar as they throw light on the underlying questions of principle, namely those of causation and characterisation of the relevant use or operation. It is to that question I now turn. Taking Zurich first, there too the accident was a lifting accident. It unavoidably involved lifting a heavy ramp that was part of a trailer attached to a truck owned by the employer; compare the present case where the lifting was only necessary in the overhang situation which occurred some three times out of ten. The trailer had been custom-built to the requirements of the owner and employer for the purpose of carrying that ramp. Here, by contrast, it is unclear to what extent the ramp was manufactured as part of a custom-made trailer or whether the trailer was subsequently adapted to carry the ramp. In my view nothing hangs on that. 92 In Allianz (supra), a truck had been specifically modified to facilitate the unloading of airline containers using a t-bar mechanism. It was known from time to time to break down at the gearbox, so rendering the unloading mechanism inoperative; that was clearly a defect in the vehicle. The injury occurred because, whilst no manual effort was required to move the containers to the rear of the truck when the t-bar mechanism was working, it had broken down. The employer/owner, in disregard of his legal obligation to provide a safe system of work, instructed his employees to use a crowbar to move the containers manually. Here there is much to be said for the conclusion (in Giles JA's judgment which I have had the advantage of reading) that there was, a limine, no defect in the vehicle. But if there was, for reasons developed below, I consider that the injury was not (as it had to be) caused by the fault of the owner qua owner.

Causation 93 In Allianz as in this case, it could not be said that the injury was caused merely by something inanimate, namely a defect in the vehicle; compare McHugh J at [18] in Allianz. 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. This was because the unloading mechanism was out of order, so emphasising the importance of human intervention (ordering the manual unloading) as the critical causal factor. 94 This is so whether one uses or eschews the language of "proximate cause", or "immediate cause". According to McHugh J (at [54]), these were metaphysical concepts to be avoided. Mason CJ earlier concluded against resort in causation questions to the terminology of "direct" or "natural and probable" as against common sense notions of causation; March v Stramare (E & M H) Pty Ltd [1990-91] 171 CLR 506 at 508. However, 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. 95 I do not consider that there is any relevant distinction between (a) a loading mechanism breaking down so as to bring about human intervention directing the loading to proceed manually (Allianz) as against (b) the human intervention involved in an employer requiring the loading of utilities in such number as to cause an overhang, thereby restricting access so as to result in an unsafe mode of lifting the ramp underneath in order to put it away after loading. 96 In each case there is human intervention on the employer's part bringing about an unsafe system of work. In the present case no specific direction to use the ramp needed to be given. It was enough that the employer directed the number of utilities to be loaded with consequent overhang and restricted access. This was an occurrence that was not infrequent. That in turn led to lack of safety for the employee required to move the ramp manually in a confined space. 97 That leads me to the conclusion that, to employ the terminology of Gummow, Hayne and Heydon JJ, the predominant, proximate or immediate cause of the injury was the unsafe system of work thereby brought about. It was the employer's human intervention in bringing about an unsafe system of work that more immediately caused the injury for purposes of element (a) of the definition of "injury" and not any defect in the vehicle. 98 Another route to that result is to adopt the proposition that a defect in the vehicle, itself inanimate, could not logically "cause" the injury at all. Alternatively, even if it could do so as the definition of "injury" suggests, the causal potency of such an inanimate defect was, using the language of McHugh J in Allianz, weak. It consisted in a defect in the loading mechanism and in particular the ramp. Being a weak causal factor, it was readily displaced by the more active and therefore more powerful factor of the employer maintaining and impliedly directing an unsafe system of work in the loading process; compare McHugh J at [34-8] and earlier in Insurance Commission (WA) v Container Handlers Pty Ltd (2004) 78 ALJR 821 at 8267 [18]. 99 This comports with answering the question of causality not at large or by common sense alone but by identifying the purpose to which the question is directed. All judgments in Allianz adopted that approach. It has been again affirmed by Lord Hoffman, writing extra-judicially on "Causation" in (2005) 121 LQR 535 at 592. Here that purpose emerges from successive legislative changes to the Motor Accidents legislation. They were, as the High Court recognised, clearly intended to narrow the definition of "injury". This was for the stated object of keeping premiums "affordable" by containing "the overall costs of the scheme within reasonable bounds" (s2A(2)(a) of the Motor Accidents Act 1995). In aid of that, s2B(1) of MACA directs that construction which promotes the objects of the Act. 100 Such an object is clearly served by a possible reading which narrows the scope of the definition of "injury" to exclude this kind of workplace injury. What is excluded is more precisely those workplace injuries which result from the employer directing, expressly or impliedly, an unsafe system of work, here that of loading. One need go no further than that to resolve the present case. But it still remains a question, left open by the High Court in Allianz, whether one should exclude altogether a loading or unloading operation from "use or operation" of a vehicle. It is arguable that loading is but an adjunct to use or operation of a vehicle taking place when the vehicle is at rest. Compare a defect in vehicle brakes when driven. It directly affects the vehicle in its use or operation. That question did not need to be resolved in Allianz because a concession was made as was noted by Gummow, Hayne and Heydon JJ at [84-7]. One achieves the same result here, by treating the implied direction to undertake an unsafe system of work as the predominant or immediate cause of the bodily injury suffered. A more radical approach is not necessary to achieve that result. 101 Most recently the issue of causation in relation to a statutory compensation scheme was considered by the High Court in Travel Compensation Fund v Tambree t/as R Tambree and Associates (2006) 80 ALJR 183. In that case, the respondents, the accountant and auditor of a travel agent, provided financial statements to the appellant insurer. They were found to have engaged in misleading and deceptive conduct, in contravention of s42 Fair Trading Act 1986. An issue of causation arose in relation to the assessment of damages because the fund's loss (which consisted of payment of compensation claims arising from the travel agent's failure to provide services for moneys paid) principally occurred during a period in which the travel agent was unlawfully operating her business unlicensed. 102 The issue was whether the fund's loss was caused "by" the respondents' conduct. The New South Wales Court of Appeal had earlier considered the agent's illegal conduct to be an intervening immediate cause of the appellant's loss which broke the chain of causation. The judges referred to normative considerations and "value judgments" affecting the determination of issues of causation, in particular, whether "the defendant ought to be held liable to pay damages for [the] harm [suffered]"; Tambree v Travel Compensation Fund and Ors [2004] NSWCA 24 at [138-139], [146]. 103 The judges of the High Court differed as to the appropriate method for determining causation at common law. Gleeson CJ emphasised at [29] that while normative considerations have a role to play, in appropriate circumstances, in judgments about issues of causation, "this is not to invite judges to engage in value judgments at large. The relevant norms must be derived from legal principle." 104 Gummow and Hayne JJ took a similar approach, reaffirming in that regard what was said in Sullivan v Moody (2001) 207 CLR 562 at [49]: "The question as to what is fair, and just and reasonable is capable of being misunderstood as an invitation to formulate policy rather than to search for principle. The concept of policy, in this context, is often ill-defined. There are policies at work in the law which can be identified and applied to novel problems, but the law or tort develops by reference to principles, which must be capable of general application, not discretionary decision-making in individual cases." 105 Kirby J on the other hand was critical of appeals to "legal principle", observing at [66] that: "when analysed, any such "legal principle" (if it goes beyond the undisputed necessity in statutory claims to fulfil the purposes and assumptions of the statute) is normally reduced to value judgments and policy considerations expressed in very broad language. This is so whether it is expressed by reference to what "commonsense" or "practicality" requires in the particular case or to what is "just", "reasonable", "practical", "fair" and "sensible". If this is the kind of "legal principle" that my colleagues envisage, it is a legal principle of the most opaque variety which Professor Julius Stone described as a category of illusory reference." [footnotes omitted] 106 However, all the judges agreed that where a cause of action is, as here, conferred by statute, "the statutory purpose is the primary source of the relevant legal norms"; Gleeson CJ at [28]; see also Kirby J at [66] and Callinan J at [79]. Gummow and Hayne JJ at [45] rejected commonsense as the means of determination of causation in this statutory context. At [49] they drew on the approach adopted in Allianz, that "notions of 'cause' as involved in a particular statutory regime are to be understood by reference to the statutory subject, scope and purpose"; see also Allianz (supra) per Gummow, Hayne and Heydon JJ at [99]. 107 In Tambree, it was held that the risk than an insolvent travel agent, who was no longer a participant in the fund, would unlawfully continue trading and that claims would be made on the fund, was part of the risk against which the appellant was seeking to protect itself by obtaining financial statements from the respondents; [33]-[34], [40], [73], [84]. 108 In the present case, issues of causation must be understood by reference to the subject, scope and purpose of the MACA. The legislative purpose of MACA is as I have said to compensate for injury directly and not peripherally related to the use and operation of a vehicle. The subject, scope and purpose of MACA are directed to the conduct of the owner or driver of the vehicle in that capacity, and not to the conduct of the owner qua employer. In this case, the employer's intervention was only indirectly related to the use and operation of the vehicle, in that the loading (and any unloading) preceded its departure and immediately followed its arrival. The nature and scope of that statute therefore preclude finding the necessary causation in the present circumstances, without need to resort at large to value judgments or commonsense.

Conclusion 109 For these reasons, I would conclude that the injury here suffered was not an "injury" within the definition of "injury" in s3 MACA. I do not need to reach that conclusion by excluding from the statutory reference to "defect" any deficiency in the vehicle's loading mechanism via the ramp. Rather I do so by treating Toll's unsafe system of work as the predominant or immediate cause; one which has a stronger causal operation than the inanimate state of the stationary vehicle and associated ramp. That result is more consonant with the purpose to which the question of causation is directed, and takes proper account of the objects of the statute by adopting a narrower reading of its scope. Therefore the bodily injury which occurred was as a result of the conduct of Toll qua employer, not Toll qua owner of the vehicle. There is no basis or necessity for this Court to permit challenge to the correctness of Zurich.

Issue Estoppel 110 I have earlier set out the way in which this issue arises. The fundamental point is that the determination upon which the trial judge was engaged was a determination of modified common law damages under Pt 5 WCA. On the other hand, McGrowdie AJ's determination was for a distinct purpose. It was to determine Mr Dakic's entitlement to weekly payments of compensation upon the basis of a partial incapacity for work from 11 May 2001 and continuing, pursuant to s40 WCA. 111 Section 40(5) WCA provides: "[5] Maximum rate of compensation The weekly payment of compensation to an injured worker in respect of any period of partial incapacity for work is not to exceed the weekly payment that would be payable to the worker if it were a period of total incapacity for work." 112 That section earlier provided that "the weekly payment of compensation to an injured worker in respect of any period of partial incapacity for work is to be an amount not exceeding the reduction in the worker's weekly earnings, but is to bear such relation to the amount of that reduction as may appear proper in the circumstances of the case". (see s40(1)) 113 Section 40(2) earlier provided that "the reduction in the worker's weekly earnings is (except as provided by this section) the difference between:

a) The weekly amount which the worker would probably have been earning as a worker but for the injury and had the worker continued to be employed in the same or some comparable employment (but not exceeding $1,000), and

b) The average weekly amount that the worker is earning, or would be able to earn in some suitable employment, from time to time after the injury (but not exceeding $1,000)." 114 Accordingly, McGrowdie AJ had to determine the first respondent's ability to earn in some suitable employment in order to determine what weekly payment should be awarded. 115 It was agreed between the parties in the Compensation Court proceedings that the first respondent would, but for the injury, probably have been earning $1,195.77 per week had he continued to be employed in the same or some comparable employment. McGrowdie AJ held that the first respondent's ability to earn from 11 May 2001 had been $750 (gross) per week. 116 The appellant tendered McGrowdie AJ's reasons for judgment but Naughton DCJ rejected the tender. 117 The trial judge did however admit, on the first respondent's tender, the Compensation Court pleadings and the Court's award which all became Exhibit H. 118 In the Compensation Court proceedings, the rate of compensation payable for total incapacity was determined pursuant to s37 WCA. Pursuant to ss79 and 80 (Division 6) the rate was adjusted six monthly (on the 1st April and the 1st October each year) with respect to movements in the indices of weekly award rates of pay published by the Australian Statistician. 119 Thus, pursuant to the award in the Compensation Court, Mr Dakic received the maximum weekly compensation payable in respect of all periods to which the award related. It covered the period from 11 May 2001 to 30 November 2003, the date of McGrowdie AJ's judgment in the Compensation Court. No such benefit was thereafter paid under this head. 120 The appellant contended on appeal that the determination of $750 gross per week was an essential finding to McGrowdie AJ's ultimate award of weekly payments; it was one of the essential findings required by s40 WCA. 121 Mr Dakic as first respondent/cross-appellant contends otherwise. He submits that the finding of $750 per week was not "legally indispensable to the conclusion reached in the Compensation Court"; Blair v Curran (1939) 62 CLR 464 per Dixon J at 531-2. He submitted that it was only an evidentiary fact and not an ultimate fact forming title to the right; compare Egri v DRG Australian Limited [1988] 19 NSWLR 600 per Clarke JA at 607. 122 Mr Dakic then argued that the finding would have possessed such a character only if it had been found that the difference between the first respondent's probable earnings but for injury, and his ability to earn after the injury, was less than the statutory compensation payable. It was said that Mr Dakic would have been entitled to a "full and continuing award" irrespective of whether the Compensation Court had found that his post-injury ability to earn was $1 per week, $500 per week or, as was the finding, $750 per week. 123 The appellant's answer to this contention is twofold. First, the appellant points out that its Further Amended Notice of Grounds of Defence did make the question of issue estoppel relevant. Accordingly, and consistent with Somodaj v Australian Iron and Steel Ltd (1963) 109 CLR 285 it was "permissible to look at the reasons of the learned member of the Commission - which were tendered in evidence ….. upon the trial of the question - for the purpose of seeing what was actually decided" (at 299). 124 Second, the finding of $750 was an essential finding to the Compensation Court's ultimate award of weekly payments, as required by s40 WCA. Thus, in the words of Clarke JA in Egri & Anor v DRG Australia Ltd (supra) at 611 the particular finding was "fundamental, or formed the groundwork, to [the] ultimate conclusion". As Clarke JA observed "It is not a necessary condition of an estoppel arising from such a finding that it be made in the determination of an issue which is identical with the issue in related proceedings. It is sufficient if the finding, of fact or law or mixed fact and law, is made in respect of an identical question notwithstanding that that question may fall to be decided in the course of the determination of issues which are not identical" (at 610). 125 The issue here said to be identical by the appellant was Mr Dakic's ability to earn an income. Thus the trial judge, it was said, was similarly required to make a finding as to Mr Dakic's ability to earn income post injury. Thus it was said, Mr Dakic was bound by the decision of McGrowdie AJ on that issue.

Decision 126 I would agree that the particular finding was necessary for McGrowdie AJ to reach the conclusion he did. This was by reason of the statutory direction in s40 to determine Mr Dakic's entitlement to weekly payments of compensation, by reference, inter alia, to "the average weekly amount that the worker is earning, or would be able to earn in some suitable employment, from time to time after the injury (but not exceeding $1,000)". It was a legally indispensable step to the conclusion reached though in the events that happened it, or a lower figure, would not have affected that outcome. 127 However, that does not resolve the matter. When the trial judge had to consider the distinct issue of Mr Dakic's modified common law damages under Pt 5 WCA, he was directing himself to a different issue in determining past economic loss, namely his capacity to earn. As was said in Medlin v State Government Insurance Commission (1994-1995) 182 CLR 1 by McHugh J at 16 "earning capacity is an intangible asset. Its value depends on what it is capable of producing. Earnings are evidence of the value of earning capacity but they are not synonymous with its value". 128 In short, while it is true that an issue might be determined in one case that was "legally indispensable to the conclusion reached", in the case here the ultimate issue was a different one. 129 Thus in the first proceeding in the Compensation Court, the relevant issue was itself defined by its context, namely s40 WCA, in the way I have described. 130 In the second proceedings, namely the modified common law damages action under Pt 5 WCA, the context is different and likewise the ultimate issue. 131 That difference is brought out in the following passage from the judgment of Clarke JA in Egri & Anor v DRG Australia Ltd at 609-10: "Furthermore ultimate findings of the Compensation Court, notwithstanding that they are essential to the award, may well be irrelevant to the issues in a common law claim for damages between the same parties. For instance, a finding that a worker was partially incapacitated within the meaning of the Workers' Compensation Act, during a specified period, would arguably not require that in later proceedings a tribunal of fact, be it judge or jury, assess damages for impairment of earning capacity in the past upon some restricted basis. Questions of partial or total incapacity under the Workers' Compensation Act are not in strictness in issue in damages proceedings. It is no doubt relevant in both cases to show that a plaintiff suffers from a disability or has lost some work capacity but in an assessment of damages the issues are whether his earning capacity has been impaired and, if so, what sum affords adequate compensation for the loss which that impairment has caused him. These issues require a consideration of many factors including the degree of disability, the worker's industrial background and education, mitigation of damages including attempts to obtain work and the state of the labour market generally.

Likewise it is at least arguable that a finding of total incapacity in the Compensation Court is incapable of sustaining a relevant estoppel in a damages claim arising out of the same work injury. It is unnecessary to elaborate further as the point I am seeking to emphasise is that the Compensation Court is concerned with markedly different ultimate issues than is the court assessing damages for tortiously inflicted injuries." 132 These observations were qualified by Clarke JA's observation in Egri that it was unnecessary finally to determine whether ultimate findings concerning capacity in the Compensation Court were capable of creating relevant estoppels. Nonetheless it is significant that both Clarke JA in Egri, and the High Court most recently in Kuligowski v Metrobus (2004) 208 ALR 1 at 12 in a joint judgment, approved the following statement by Barwick CJ in Ramsay v Pigram (1968) 118 CLR 271 at 276 as encapsulating what is required for there to be an identical issue capable of giving rise to issue estoppel: "Long standing authorities, in my opinion, warrant the statement that, as a mechanism in the process of accumulating material for the determination of issues in a proceeding between parties, an estoppel is available to prevent the assertion in those proceedings of a matter of fact or of law in a sense contrary to that in which that precise matter has already been necessarily and directly decided by a competent tribunal in resolving rights or obligations between the same parties in the same respective interests or capacities, or between a privy of each, or between one of them and a privy of the other in each instance in the same interest or capacity. The issue thus determined, as distinct from the cause of action in relation to which it arose, must have been identical in each case." 133 Moreover, the very statement in s40(2) WCA of what was to be determined is expressed by reference to "some suitable employment", whereas the issue for the purpose of determining earning capacity in a common law damages case does not focus on suitable employment as such. Rather, as I have said, it is concerned with earnings as evidence of the value of (lost) earning capacity. The issues in their very formulation are therefore different and not identical, so precluding issue estoppel.

Conclusion 134 It follows that the trial judge was correct in not admitting into evidence the decision of McGrowdie AJ and in concluding that no issue estoppel arose as would have been necessary for that judgment to be properly admissible in evidence.

Costs 135 I have earlier set out the basis upon which the trial judge declined to make a Bullock order at the behest of Mr Dakic as plaintiff against Toll. With respect, here the trial judge was in error. The reasons can be shortly stated. 136 Mr Dakic did not join NRMA originally but sued Toll, his employer, in damages. This occurred in 2001. 137 Toll raised as part of its defence in the 2001 proceedings that the Motor Accidents legislation applied rather than the Workers Compensation legislation. Toll then made a cross-claim in the 2001 proceedings against its insurer, NRMA. 138 When Mr Dakic made a claim for modified Common Law damages under Pt 5 WCA, Toll by way of defence alleged that any injury occurred in the use or operation of a motor vehicle by reason of a defect in the vehicle such that the injury fell within s3 MCA. In those circumstances Mr Dakic naturally also commenced Motor Accident proceedings against NRMA, an action wholly explained by Toll's position in invoking the Motor Accident legislation in the first place by way of defence. 139 I agree with the first respondent's submission in the cross-appeal that it would be difficult to imagine a clearer case than the present warranting the making of a Bullock order. The joinder of NRMA, on its own application, was plainly attributable to the conduct of the unsuccessful defendant, Toll. That conduct made it proper that Toll should bear the costs of NRMA; compare Giles J in Sved v Council of Municipality of Woollahra (1998) NSW Conv R 55-842 at 55,605 as subsequently approved by this Court in Almeida v Universal Dye Works (No. 2) [2001] NSWCA 156 at [7] and in Canterbury Municipal Council v Taylor (No. 2) [2002] NSWCA 96 at [6]. 140 Though the matter of cost orders is classically discretionary in nature and on a matter of practice and procedure, nonetheless here the trial judge did err in exercising his discretion by failing to take into account a material consideration, namely that NRMA became a defendant to a claim by Mr Dakic as a direct result of Toll invoking the Motor Accidents legislation by way of defence. Moreover, upon the undisputed facts the trial judge's decision on this matter was, with respect, unreasonable and unjust; compare House v R (1936) 55 CLR 499 at 505.

Conclusion 141 The trial judge should have made a Bullock order whereby Toll should have been rendered liable for any costs for which the first respondent is liable to the NRMA.

OVERALL CONCLUSION AND ORDERS 142 Mr Dakic has been successful on all issues the subject of Toll's appeal and Mr Dakic's cross-appeal against Toll in respect of costs. While Mr Dakic has not been successful in relation to the Notice of Contention, I do not consider that issue played such a role as to warrant a result other than one which reflects the fact that the appellant failed on all its grounds of appeal. In my opinion the first respondent should be paid all his costs on appeal. 143 So far as NRMA as second respondent is concerned, it should likewise receive the benefit of an order for its costs as against Toll. 144 Accordingly, I would propose orders as follows: (1) Appeal dismissed. (2) The appellant to pay respondents' costs. (3) Cross-appeal allowed. (4) Order in proceedings No. 107 of 2004 that the first defendant pay to the plaintiff the costs payable by him to the second defendant. (5) First cross-respondent pay the cross-appellant's costs and have a certificate under the Suitors' Fund Act if otherwise qualified. 145 BROWNIE AJA: "Injury"? The relevant facts are as summarised by Santow JA at [14]-[41] above, and the question to be answered is whether the physical injury to the plaintiff, Mr Dakic, was one falling within the ambit of the Motor Accidents Compensation Act 1999 (the 1999 Act). If it did, he is entitled to damages assessed in accordance with that Act, payable by Toll's compulsory third party insurer. If not, he is entitled to damages assessed in accordance with the Workers Compensation Act 1987, payable by Toll's workers compensation insurer. 146 Section 122(1) of the 1999 Act provides: "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."

147 Section 3, defining "injury", is set out at [42] above. Sections 5 and 6 are in these terms: 5(1) The objects of this Act are as follows: (a) to encourage early and appropriate treatment and rehabilitation to achieve optimum recovery from injuries sustained in motor accidents, and to provide appropriately for the future needs of those with ongoing disabilities,

(b) to provide compensation for compensable injuries sustained in motor accidents, and to encourage the early resolution of compensation claims,

(c) to promote competition in the setting of premiums for third-party policies, and to provide the Authority with a prudential role to ensure against market failure,

(d) to keep premiums affordable, recognising that third-party bodily insurance is compulsory for all owners of motor vehicles registered in New South Wales,

(e) to keep premiums affordable, in particular, by limiting the amount of compensation payable for non-economic loss in cases of relatively minor injuries, while preserving principles of full compensation for those with severe injuries involving ongoing impairment and disabilities,

(f) to ensure that insurers charge premiums that fully fund their anticipated liability,

(g) to deter fraud in connection with compulsory third-party insurance. (2) It must be acknowledged in the application and administration of this Act: (a) that participants in the scheme under this Act have shared and integrated roles with the overall aim of benefiting all members of the motoring public by keeping the overall costs of the scheme within reasonable bounds so as to keep premiums affordable, and

(b) that the law (both the enacted law and the common law) relating to the assessment of damages in claims made under this Act should be interpreted and applied in a way that acknowledges the clear legislative intention to restrict the level of non-economic loss compensation in cases of minor injuries, and

(c) that: (i) the premium pool from which each insurer pays claims consists at any given time of a finite amount of money, and (ii) insurers are obliged under this Act to charge premiums that will fully fund their anticipated liability, and (iii) the preparation of fully funded premiums requires a large measure of stability and predictability regarding the likely future number and cost of claims arising under policies sold once the premium is in place, and (iv) the stability and predictability referred to in subparagraph (iii) require consistent and stable application of the law, and

(d) that insurers, as receivers of public money that is compulsorily levied, should account for their profit margins, and their records should be available to the Authority to ensure that accountability. 6(1) In the interpretation of a provision of this Act or the regulations, a construction that would promote the objects of this Act or the provision is to be preferred to a construction that would not promote those objects.

(2) In the exercise of a discretion conferred by a provision of this Act or the regulations, the person exercising the discretion must do so in the way that would best promote the objects of this Act or of the provision concerned. 148 Like the definition of "injury" in section 3, the provisions of sections 122(1), 5 and 6 of the 1999 Act replicate the provisions of sections 69(1), 2A and 2B of the Motor Accidents Act 1988 (the 1988 Act), as that Act was amended by the Motor Accidents Amendment Act 1995 (the 1995 Act). The effect of the 1988 Act, as amended by the 1995 Act, was considered by the High Court in Allianz Australia Insurance Limited v GSF Australia Pty Limited [2005] HCA 26, 79 ALJR 1079, decided after Naughton DCJ gave judgment.

149 An appreciation of the facts giving rise to the plaintiff's injury, the terms of the 1999 Act, the effect of the 1995 amendment to the 1988 Act, what was said on the occasion of the Second Reading speech leading to the passing of the 1995 Act, and what was said in Allianz seems to me to mean that the present appeal must be dismissed, although it might be for more than one reason, not all of which can be clearly and confidently articulated; and it may be that different people will consider some reasons more persuasive than others. However, to my mind the 1999 Act, like the 1988 Act, as amended by the 1995 Act, simply was not intended to give relief to the plaintiff, or more particularly to Toll's workers compensation insurer, in circumstances such as those now in question.

150 If the plaintiff had been injured during the actual loading on to the insured vehicle of the vehicles intended to be carried, then depending upon just how the injury had been caused in relation to the vehicle, it might not have been open to this court to hold that the injury had not been caused by the fault of Toll, the vehicle owner, in "the use" or operation of the vehicle: Government Insurance Office of NSW v R J Green & Lloyd Pty Ltd (1966) 114 CLR 437, [1966] HCA 6, and Allianz at [41]. I will proceed on the basis that an injury sustained during the actual loading operation, as described by Santow JA, might properly be said to have been caused by the fault of Toll in the use or operation of the vehicle, again depending upon the precise way in which the injury was caused in relation to the vehicle, but in my judgment it cannot properly be said that the plaintiff's injury was caused by Toll's fault "during" the use or operation of the vehicle.

151 In his second reading speech concerning the 1995 Act the Attorney-General said: "The CTP policy and the motor accidents scheme simply are not, and were never intended to be, a comprehensive accident compensation scheme providing substantial damages in all cases of injuries connected in some way to the use of a motor vehicle. Common sense and community expectations generally demand that the CTP policy provide coverage in respect of injuries which arise from crashes and collisions on the roads or from vehicles running out of control. Over the years the courts have interpreted the CTP policy as providing for a wide range of injuries often unrelated to motor accidents. For example, the CTP policy has been held to cover injuries sustained during the loading and unloading of vehicles, and injuries sustained while standing on the back of a stationary trailer, and injuries involved in the use of a firearm in a vehicle.

It is therefore proposed to amend the definition of 'injury' to adopt an approach similar to that taken in Queensland, South Australia and Western Australia, where 'injury' is qualified in terms of its cause. Similarly, the expression 'motor vehicle' is widely defined in the Act and covers go-karts and other vehicles, such as forklifts, not normally associated with use on the dedicated public road network. Accidents involving such vehicles have given rise to claims against the Nominal Defendant under the Motor Accidents Act . Under the Construction Safety Act the WorkCover Authority licenses go-kart facilities and public liability insurance is compulsory. It is considered that claims for injury arising from the use of such vehicles should properly be made under such public liability policies and not against the Nominal Defendant." 152 Section 5(1)(c) and 5(2)(c) of the 1999 Act direct attention to the need to keep premiums affordable, and to how premiums are to be disbursed, and it is plain that the definition of "injury", effected by the 1995 Act, now re-enacted by the 1999 Act, was intended to be narrowed, with a view to restricting the circumstances in which damages were to payable under the legislation. 153 Assuming that if the plaintiff had been injured, for example by the collapse of one of the loading ramps whilst he was driving up the ramps a vehicle, intended to be carried on the insured vehicle, that injury would have been characterised as an injury caused during the use or operation of the insured vehicle, that does not mean that, in the circumstances that actually pertained, his injury was caused "during" the use or operation of the vehicle. At the time of his physical injury, he had completed loading the vehicles intended to be carried on to the insured vehicle, had secured those vehicles, and was engaged in the task of removing the detachable, interchangeable ramps, so as to be able to store them on the tray of the insured vehicle, for use in future unloading operations. 154 I do not doubt that if this case had to be decided by reference to the provisions of the Motor Vehicle (Third Party Insurance) Act 1942 (the 1942 Act), providing for compulsory insurance against the risk of injury arising out of or in the course of the use of a motor vehicle, the plaintiff would have succeeded, in substance against the compulsory third party insurer of Toll, but as cases such as Allianz and Insurance Commission of Western Australia v Container Handlers Pty Ltd (2004) 218 CLR 89, [2004] HCA 24 establish, what must be considered now is the new, more narrowly expressed legislation, founded upon the stated need to keep premiums affordable, in part by reference to the relatively narrow definition of "injury". 155 Giving appropriate weight to the whole expression ("'Injury' means personal or bodily injury caused by the fault of the owner … 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 … such use or operation by a defect in the vehicle"), and to its constituent parts, I do not think that it can properly be said that the plaintiff's injury was caused by the fault of Toll "during" the use or operation of the vehicle. 156 Whilst different factual examples are apt to distract and mislead, it might be helpful in this case to contemplate slightly changed facts, for example if the plaintiff had taken a meal break after driving the last of the vehicles to be carried up the ramps, and before detaching the ramps. 157 Independently of these considerations, concerning the word "during", I respectfully doubt that it is accurate to say that there was a "defect" in the vehicle, or that if there was a defect, it was "in" the vehicle, but even if this was so, I agree with Santow JA that the appeal should be dismissed on the basis that the plaintiff's injury was not a result of and caused during the use or operation of the vehicle by such a defect in the vehicle, although I would prefer to state my reasons rather differently. 158 As the judgment of Spigelman CJ in Zurich Australian Insurance Ltd v CSR Ltd (2001) 52 NSWLR 193, [2001] NSWCA 261, shows, the idea that one should consider questions such as that now under consideration by reference to the intended use of the vehicle, has a long and distinguished pedigree; and in Allianz that terminology was used again. However, I am troubled by the idea that one should consider the question by reference to the intention of the manufacturer of the vehicle. Sometimes a vehicle will have been adapted, or altered, or repaired, so that to decide some case by reference to the intention of the vehicle manufacturer might not be helpful; and if it is necessary to decide the case in this way, one might need to consider what the intention of the manufacturer would have been, by reference to what it actually knew, and what its intention would have been, had it known all the facts established at trial. Its intention might well have varied from time to time. 159 It might be that one should consider, objectively, not the actual intention of the manufacturer, or even of the owner or driver of the vehicle, but the assumed intention of those persons who were likely to use the vehicle from time to time, or what the court conceives to be the natural or the proper or the appropriate use of the vehicle, but it is not necessary to decide that in this case.

160 I find it difficult to see either that there was a "defect" in the vehicle, or that there was a defect "in" the vehicle. Unless "deck 7" of the insured vehicle was loaded with another vehicle, so long that the rear end of the latter vehicle overhung the rear end of the insured vehicle, there was nothing in the nature of a "defect" in the vehicle, or of a defect "in" the vehicle. A risk of injury arose in relation to the person disconnecting (or connecting) the ramps, if there was such an overhang, but only then. It was, admittedly, negligence on the part of Toll, to require somebody such as the plaintiff to disconnect (or connect) the ramps in these circumstances, in that there was then an unsafe system of work, but whilst this risk obviously arose in relation to Toll's obligations to its employees to provide a safe system of work, it strains the definition of "injury" in the 1999 Act to describe the injury actually sustained as being caused by the fault of Toll in the use or operation of the vehicle, if and only if, the injury was a result of and caused during such use or operation by a defect in the vehicle. 161 Admittedly, there was a defect in the system of work, and therefore fault on the part of Toll, resulting in the plaintiff's physical injury, but one comes back to the question whether that injury fell within the statutory definition, and I conclude that it does not. The cause of the plaintiff's injury was the system of work, and not a defect in the vehicle.

Possible law reform 162 As is demonstrated by cases such as this case, Allianz, Container Handlers, and many other cases, most of them not reported, the 1999 Act, like other similar legislation in other parts of Australia, is apt to produce litigation, principally between the workers compensation and the compulsory third party insurers of someone who is negligent, and who is both the employer of an injured person, and the owner of a motor vehicle in connection, somehow, with which the injury occurred. Whenever someone is injured in circumstances like these, the respective insurers are each likely to take the view that the other insurer should pay what ever damages, if any, are payable, and when an injured person is caught up in a dispute of this kind, he or she has no real option but to seek damages under one statutory regime or the other. Then, as the result at trial on this case (although reversed, to an extent, on appeal) shows, the injured person is very likely to lose out financially, what ever may be decided, at trial, on appeal. 163 It is not obvious that there is any real social utility in allowing litigation of this kind to continue: no real advantage to the injured person, and no advantage to the community in allowing two groups of insurers to repeatedly litigate questions to which there are sometimes no clear answers, and where the resolution of particular disputes are not very likely to prevent future litigation, and where each of the insurers is ultimately funded by premiums compulsorily paid by members of the community at large - vehicle owners and employers. If, as I think is the case, the legislature intended that the workers compensation insurers should bear the burden of the liabilities of employers such as Toll in the circumstances of this case, it might be that it would be better to amend the 1999 Act so as to make it explicit, for example, that if an injury arises in relation to the loading or unloading of a vehicle, in circumstances entitling the injured person to relief under the Workers Compensation Act, then the injury is not one to which the 1999 Act applies. This is of course a matter for the legislature. Other questions 164 I agree with Santow JA, concerning the topics of issue estoppel and costs. **********

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