(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.