Walfertan Processors Pty Ltd v Dever

Motor Accidents Act 1988 LEGISLATION CITED: Motor Accidents Compensation Act 1999 Motor Vehicles (Third Party Insurance) Act 1942 Workers Compensation Act 1987

Allianz Australia Insurance Ltd v GSF Australia Pty Ltd (2005) 221 CLR 568; Chappel v Hart (1998) 195 CLR 232; Duyvelschaff v Cathcart & Ritchie Ltd (1973) 1 ALR 125; McLean v Tedman (1984) 155 CLR 306; CASES CITED: McWilliams v Sir William Arrol & Co Ltd (1962) 3 All ER 623; Toll Pty Ltd v Dakic [2006] NSWCA 58; Topfelt Pty Ltd v State Bank of New South Wales (1993) 47 FCR 226; Wigley v British Vinegars Ltd (1964) AC 307; Zurich Australia Insurance Ltd v CSR Ltd (2001) 52 NSWLR 193.

PARTIES: Walfertan Processors Pty Ltd - Appellant Jamie Dever - Respondent

COUNSEL: I D Roberts SC & D J Hooke - Appellant K P Rewell SC & P J Mooney - Respondent

SOLICITORS: Edwards Michael Moroney Lawyers - Appellant Steve Masselos & Co - Respondent

LOWER COURT JURISDICTION: District Court

LOWER COURT DATE OF DECISION: 5 October 2005

LOWER COURT MEDIUM NEUTRAL CITATION: (Garling DCJ, 5 October 2005, unreporeted)

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40840/05 DC 5139/03

GILES JA SANTOW JA BASTEN JA

Wednesday 1 November 2006 WALFERTAN PROCESSORS PTY LTD v DEVER Judgment 1 GILES JA: This is yet another appeal concerned with whether an injury suffered by an employee in his employment was an "injury" within the meaning of s 3 of the Motor Accidents Compensation Act 1999 ("the Act"). If it was, the employee retains the damages of $181,286 awarded by the trial judge. If it was not, the award of damages must be set aside because the employee did not reach the threshold for permanent impairment under the Workers Compensation Act 1987. 2 The definition of "injury" in s 3 of the Act was 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

(iv) such use or operation by a defect in the vehicle,

Facts 3 The appellant owned a property at Aberdeen used for the processing of hides and skins. A large amount of sullage was produced. The sullage was pumped into a tank mounted on a trailer, which was towed by a tractor about the property depositing the sullage. The trailer was very heavy, and was so constructed that its centre of gravity was well forward of its wheels. A large force was required to raise the drawbar at its coupling, and it could not be lifted by one person. 4 The drawbar had for its coupling a bar with a hole through it, which engaged between two bars, one above the other, extending from the towbar on the rear of the tractor. A pin (also referred to as a bolt) was inserted vertically through a hole in the upper of the bars, through the hole in the bar on the drawbar and through a hole in the lower of the bars. The pin was described as about eight inches in length when undamaged. Its diameter was slightly less than the diameters of the holes. There could be movement of the pin in the holes, and distortion or breaking of the pin under the stress of towing the trailer over the rough terrain of the property. From time to time the pin had to be replaced. 5 The respondent was employed by the appellant as a general hand, his duties including driving the tractor. On the occasion of the respondent's injury he was standing at the rear of the tractor, coupled to the trailer, when another employee, Mr Mark Harper, removed the pin from the coupling elements. The trial judge did not clearly find why Mr Harper did so. Mr Harper could not be found and so did not give evidence. 6 Mr Harper had been driving the tractor depositing sullage, and drove it back to where the respondent was working at the effluent plant. The evidence did not support that he was uncoupling the trailer because he had finished depositing sullage. It does not seem that he had brought the trailer to where it was left between being used. 7 The respondent said in his oral evidence that Mr Harper was "pretty furious" and "going off because the bolt needed … ", and when asked what Mr Harper said answered (as transcribed), "He was just f'n piece of shit, needed the bolt to be, well he said to me 'come and have a look at this'". The respondent said that Mr Harper held up the pin after pulling it out, and he saw "that it was broken because it was too short"; however, it seems that although about two inches was broken off the bottom of the pin, its length was still sufficient to pass through the holes in the bars and hold the trailer coupled to the tractor. Mr Harper pulled the pin out by hand, suggesting that it was not badly distorted, and it had held the trailer coupled to the tractor to bring it back to the effluent plant. 8 In a statement later made the respondent said (as written) - "Mark came up from the bottom hair paddock and was driving the blue Ford tractor, pulling the manure spreader behind it. Mark stopped the tractor at effluent, and was quite angry as he needed to replace the bolt again that was holding the trailer onto the tractor. I went over to see why Mark was angry, when he pulled the remaining bolt out of the draw bar and cuppling connection. We both could see that the bolt was severely damaged." 9 It is unclear whether Mr Harper was in a position to replace the pin then and there. In my opinion, the appropriate finding is that he was removing the pin in order to share his opinion of it with the respondent, perhaps intending to replace it then and there but more likely intending to drive to somewhere else where he would replace it; he did not intend at that time to separate the tractor and the trailer. 10 When Mr Harper removed the pin, nothing was placed beneath the drawbar to prevent it from falling to the ground if it slipped from between the bars extending from the towbar. It did so, the evidence not revealing why. Without anything to hold up the drawbar, it arced downwards and fell on the respondent's right foot. He suffered a crush injury to the foot. 11 The conventional use of a jockey wheel (in which I include a standing leg) to support the drawbar of a trailer when it was being coupled to or was uncoupled from the towing vehicle was common ground. A jockey wheel could have been fitted with a capacity suitable for the heavy trailer, including a jockey wheel of a kind which swivelled after coupling so as not to protrude groundwards and hinder passage over rough terrain. Although there was a mounting for a jockey wheel at the front end of the drawbar, a jockey wheel was not fitted. 12 The trailer had been used without a jockey wheel for many years prior to this occasion. It was coupled to and uncoupled from the tractor frequently, a number of times each week. A forklift was used to lift the drawbar in order to couple the trailer to the tractor. Often the forklift was used when uncoupling the trailer, by bringing the tines beneath the drawbar to take the weight, removing the pin from the coupling elements, driving the tractor off and then lowering the drawbar to the ground on the tines. Although that was the instruction to the respondent, it was not always done: according to the respondent, whose evidence generally was accepted by the trial judge, "It depended on the circumstances with a forklift most times if we couldn't get a forklift you just pull the pin out drive off and you'd trailer would just fall" (as transcribed). Also according to the respondent he had seen the drawbar slip off the tines of the forklift if the tines were not level. The evidence did not address instructions for or any practice in supporting the drawbar if the pin was removed for replacement or for some other reason when it was not intended to separate the tractor and the trailer.

The question in the appeal 13 It was common ground that both the tractor and the trailer were motor vehicles within the meaning of the Act. 14 The nub of the trial judge's reasoning was - "It is alleged here by the plaintiff that there is a defect in the vehicle, The defect is both in the bolt and the failure to have a jockey wheel.

In this case, for reasons I have given, I am satisfied, firstly, that the bolt held the trailer and the tractor, both of which are motor vehicles, together. The bolt was essential to those two vehicles remaining together, and was essential to the trailer being held up off the ground. I am satisfied that the bolt was defective. It was defective because, when used and placed in the holding device, it was loose to the extent that it became bent or broken, and had to be replaced. It was part of the vehicles, a necessary component, so as the tractor could pull the trailer. And, secondly, the jockey wheel should have been on the trailer so, when the tractor and the trailer were separated, the trailer would not fall to the ground - and, in this case, onto the plaintiff's foot - and that was a defect. I am satisfied that the accident occurs as a result of the bolt breaking and being removed, and the lack of support being available - that is, no jockey wheel to stop the trailer falling to the ground and onto the plaintiff's foot.

In my view, for those reasons, setting out those principles I have stated earlier, the accident arises out of the use and operation of a motor vehicle, it occurs as a result of the fault of the owner or driver, and as a result of a defect in the vehicle, and therefore falls under the definitions of the Motor Accident Compensation Act 1999, and therefore, the plaintiff must succeed on the question of liability." 15 At least on appeal, it was not in dispute that the respondent's injury was caused by the fault of the appellant as owner of the trailer in its use or operation. The appellant pointed to the trial judge's use of the phrase "arises out of the use and operation of a motor vehicle", suggestive of applying the test under the Motor Vehicles (Third Party Insurance) Act 1942 and the Motor Accidents Act 1988 until the more restrictive definition in s 3 of the Act. His Honour had set out and discussed the definition, and the phrase was probably intended to capture its temporal element; I do not think he misdirected himself. The question in the appeal was whether the respondent's injury satisfied the words in the definition "as a result of and … caused during … such use or operation by a defect in the vehicle". 16 The respondent did not seek to support the trial judge's decision on the basis that the pin was a defect in the trailer causative of his injury. He relied on the pin and its condition only as background to the events which followed. This was a proper stance: even if the pin was a defect in one or other of the tractor and the trailer, which may be thought doubtful, it is difficult to see that the defect was causative of the injury. 17 The appellant submitted that the trial judge was in error in holding that the absence of a jockey wheel was a defect in the trailer. It submitted also that the respondent's injury was not caused by that defect, and that it was rather caused by the appellant's failure to put into effect, on the occasion of the respondent's injury, its system of work for uncoupling the tractor and the trailer by using a forklift.

A defect in the trailer? 18 In Zurich Australia Insurance Ltd v CSR Ltd (2001) 52 NSWLR 193 Spigelman CJ, with whom Mason P and Handley JA agreed, considered in some detail the concept of a defect in the definition of "injury" in the Act. There could be a defect if a vehicle was unfit for the purpose for which it was designed or the use for which it was intended (at [46]), and although it was not enough that operation of a vehicle in a particular manner might lead to injury, the manner it was intended that the vehicle operate might determine whether there was a defect "in" the vehicle (at [68]). His Honour began his consideration with a citation from the judgment of Lockhart J in Topfelt Pty Ltd v State Bank of New South Wales (1993) 47 FCR 226 at 237, also taken up by McHugh J in Allianz Australia Insurance Ltd v GSF Australia Pty Ltd (2005) 221 CLR 568 at [31], in essence that in ordinary usage a defect means "a lack or absence of something necessary or essential for completeness; a shortcoming or deficiency; an imperfection", and that the defect may be either major or minor. 19 In Zurich Australia Insurance Ltd v CSR Ltd the fact that the ramp of a trailer was fitted with a single handle on the outside, without provision for anything more than the one handle, indicated that it was designed for only a single person to lift the ramp (at [40]). The trailer being so designed that it was intended to be used by one person lifting the ramp, which exposed the person to risk of injury, the absence of hydraulic or mechanical assistance for lifting the ramp was a defect in the vehicle (at [70]). 20 The trailer had to be towed by another vehicle, here the tractor, and had to be coupled to the towing vehicle. The weight at the coupling on the drawbar meant that there had to be a means of supporting the drawbar when coupling to or uncoupling from the towing vehicle; specifically in the present case, to support it when uncoupling so that it would not fall to the ground, with risk of damage to the trailer or injury to the person doing the uncoupling, or to another person in the immediate vicinity. 21 A jockey wheel mounted on the drawbar was a conventional means of support, and from the mounting at the front end of the drawbar it was designed and intended that the coupling and uncoupling of the trailer be carried out using a jockey wheel. A suitable jockey wheel could have been fitted. A jockey wheel was necessary for the intended use of the trailer, and in its absence there would be many circumstances in which the coupling and uncoupling could not be carried out, or could not be carried out without inconvenience or risk - not everyone would have a forklift. The absence of this feature of the trailer was in my opinion a defect in it.

Causative of the injury? 22 The cumulation of result and cause in the "if and only if" part of the definition of "injury" has been variously explained. In Allianz Australia Insurance Ltd v GSF Australia Pty Ltd McHugh J thought "a result of" had little work to do in relation to subpara (iv), perhaps requiring that the injury be a result of the use or operation of the vehicle. His Honour appears to have seen greater significance in "caused during", which he thought had the temporal requirement that the injury be caused by the use or operation of the vehicle and the causal requirement that the injury be caused by the defect in it (at [39]-[40]; but compare at [16] referring also to the need that the injury be the result of a defect in the vehicle). Gummow, Hayne and Heydon JJ, having said that the definition "seeks to accommodate two cumulative criteria and does so by telescoping them into a grammatical contortion" (at [93]), regarded "a result of" as a temporal criterion that the injury be a result of the use or operation of the vehicle because it was sustained during that activity and "is caused" as the criterion that the injury be caused by a defect in the vehicle (at [94]). Callinan J thought the two phrases had separate work to do, but his Honour's explanation of subpara (iv) of the definition spoke only of causation (at [131]). 23 Whatever the temporal requirement, it was satisfied in the present case. The trailer was being used or operated at the time of the respondent's injury, although temporarily stationary. If Mr Harper intended to uncouple it (which for reasons earlier given I do not think was the position), coupling to and uncoupling from a towing vehicle was essential to and part of the use and operation of the trailer. If Mr Harper was sharing his opinion of the pin with the respondent, and whether or not he intended to replace it then and there or was on his way to replace it, he was in the midst of using or operating the trailer. The contortion of the definition can be reduced to a causal requirement. 24 As explained in Allianz Australia Insurance Ltd v GSF Australia Pty Ltd, causation must be considered having regard to the scope and objects of the Act and in particular the tightening of the definition of "injury": see per McHugh J at [41]-[53] and per Gummow, Hayne and Heydon JJ at [96]-[102]. As stated by McHugh J (at [53]), the Act "does not provide a universal compensation for all injuries sustained in connection with a motor vehicle". His Honour concluded that "a close causal connection" was required, while cautioning against "metaphysical concepts such as 'proximate cause' or 'immediate cause'" (at [53]-[54]). Gummow, Hayne and Heydon JJ referred to a legislative policy of restricting previous over-broad interpretations of compulsory third party (CTP) insurance legislation, and said (at [102]) - "The use in the definition of the emphatic and intensive phrase 'if, and only if' directs attention to notions of predominance and immediacy rather than to more removed circumstances. The definition of 'injury' looks, for the CTP insurance system, to notions of proximate cause found in insurance law. That construction is consistent with the subject, scope and purpose of the 1995 Act." (citation omitted) 25 In Allianz Australia Insurance Ltd v GSF Australia Pty Ltd the vehicle's mechanical unloading system (the T-bar mechanism) was inoperative; there was a defect in the vehicle. An employee was directed to unload containers manually, using a crowbar to lever the containers to the rear of the vehicle. He injured his back. It was held that the injury was not caused by the defect in the vehicle, but by the employer's negligent direction to unload the containers manually. 26 McHugh J considered that, even on a common law approach to causation, the defect in the vehicle did not cause the injury because it had no physical connection with the injury: "There was no direction to use the defective loading mechanism. On the contrary, there was a direction to work without it" (at [60]). From the scope and objects of the Act, it was necessary that there be a close physical connection between the defect and the injury, in circumstances "that would make it consistent with the subject, scope and purpose of the Act for the Act to apply to the injury" (at [61]). Zurich Australia Insurance Ltd v CSR Ltd was distinguished because there the employee was instructed to use the vehicle for the purpose and in the manner for which it was intended, whereas in Allianz Australia Insurance Ltd v GSF Australia Pty Ltd the employee was instructed to use the vehicle in a manner other than its intended use and in a way which did not involve the use of the defective T-bar mechanism (at [63]). 27 Gummow, Hayne and Heydon JJ said, after their reference to notions of predominance and immediacy earlier noted - "103 It was the system of work adopted by GSF to deal with the problem of unloading presented by the failure in operation of the motorised T-bar and, in particular, the direction to use the crowbar to lever the containers which had a predominant quality for, and an immediacy to, Mr Oliver's injury. The defect in the T-bar was not a defect by which the accident was caused in the necessary statutory sense." 28 Callinan J said - "129 Before I turn to the construction of the definition of injury I should deal with the appellant's submission that, if the failure of the T-bar was a defect in the vehicle, it did not cause the injury, or, to put it the other way that the definition does, the injury was not a result of the defect. I would accept this submission. The T-bar was inoperable. The first respondent well knew this. Nonetheless it chose to use the vehicle to carry containers and to give a negligent and dangerous direction as to the movement of the containers. Because the T-bar was inoperable it could not and did not play any part in the events leading up to the second respondent's injury. That was a result of the negligently devised system of work and instructions that the first respondent elected to adopt. Any imperative to use the vehicle with its inoperable T-bar could only have been a self-imposed commercial one. There must come a time in relation to the occurrence of a known malfunction, when its capacity to cause a result should be regarded as spent. This, in light of the fact that the stoppage happened on the previous day, was what occurred in this case. In any event, even if the injury could be regarded as a result of a defect it could not, for the reasons I have given, be said to have been caused by it. Realistically and rationally this was an industrial accident in which, because it was not operable or operating at all, the T-bar played no part." 29 A similar preference for the system of work over the defect in the vehicle is found in the reasons of Santow JA and Brownie AJA in Toll Pty Ltd v Dakic [2006] NSWCA 58. Because a vehicle transporter was loaded with overhanging vehicles, the employee had to lift its loading ramps awkwardly. If this was a defect in the vehicle transporter, their Honours considered that the employee's injury was caused by the system of work requiring the loading of overhanging vehicles (per Santow JA) or the lifting of the ramps in those circumstances (per Brownie AJA). Their Honours expressed their reasons differently, and the facts were remote from the present facts. Santow JA took up the terminology of Gummow, Hayne and Heydon JJ in concluding that, on the facts of that case, "[i]t 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." 30 The appellant invoked similar reasoning. It submitted that in the present case the respondent's injury was caused by its failure to enforce a system of work by which, on the occasion of the injury, Mr Harper should first have supported the drawbar by a forklift. This, in its submission, was the proximate, the predominant or the immediate cause of the injury, rather than the absence of a jockey wheel. The absence of a jockey wheel had been accommodated for a long time by using a forklift, and the trailer could be and had long been used despite that defect in it; the problem on the occasion of the respondent's injury was not the defect in the trailer, but Mr Harper's failure to follow the established system of work for overcoming the defect. 31 The submission assumed that there was a system of work applicable to the occasion of the respondent's injury. I do not think that is correct. Even if Mr Harper was uncoupling the trailer because he had finished depositing sullage, there was really not a system of using a forklift. If the forklift was not available, the drawbar was allowed to fall to the ground when the trailer was driven away. If Mr Harper was not uncoupling the trailer, but removed the pin to share his opinion of it with the respondent without intending to separate the tractor and the trailer, there was no question of following the alleged system. It seems clear enough that Mr Harper did not contemplate use of the forklift before he removed the pin: he got off the tractor, said what he said to the respondent, and removed the pin, without any suggestion of seeing if the forklift was available. The appellant could better have described the problem on the occasion of the respondent's injury as its failure to enforce a system of work for overcoming the defect, or even to have a system of work apt for removal of the pin without separation of the tractor and trailer. 32 The circumstances were different from those in Allianz Australia Insurance Ltd v GSF Australia Pty Ltd. In that case the employer directed an unsafe method of unloading containers without using the defective T-bar mechanism, and it was the unsafe method which brought the injury. The respondent was not injured through an equivalent unsafe method, for example using a forklift when it was unsafe to do so because of the risk that the drawbar would slip off the tines. The appellant had a trailer in which there was a defect, and when Mr Harper removed the pin the defect, the absence of a jockey wheel, meant that there was a risk that the drawbar would fall to the ground even without the tractor being driven away. The risk came home and the respondent was injured. The appellant used a piece of defective equipment and, because of the defect, the respondent was injured. 33 Subject to a further submission to which I will next come, in my opinion there was a close physical connection between the defect in the trailer and the injury, or, using the language of Gummow, Hayne and Heydon JJ in Allianz Australia Insurance Ltd v GSF Australia Pty Ltd, the defect in the trailer had predominance and immediacy and caused the injury within the scope of causation for the purposes of the definition in the Act. I do not think that the appellant is assisted by the observation of Callinan J, on which it placed considerable reliance, that there must come a time when the capacity of a known malfunction to cause a result should be regarded as spent. The observation was referable to the inoperative T-bar mechanism, which was bypassed by the direction to unload the containers manually, whereas in the present case the equivalent to the known malfunction was the absence of the jockey wheel and that absence brought about the injury. 34 The further submission was that causation was not made out because, even if there had been a jockey wheel on the trailer, Mr Harper would not have used it to support the drawbar; thus its absence was not causative. For this purpose the appellant embraced the likelihood that Mr Harper was not uncoupling the trailer because he had finished depositing sullage, and submitted that he must have removed the pin in the belief that the drawbar would remain supported by the lower of the bars of the towbar until he reinserted the pin or a replacement pin was inserted. Being of that belief, it said, he would not have used the jockey wheel. 35 Where the issue is whether, if the employer had provided a safety device, the employee would have used it, the onus of proof is on the employee: McWilliams v Sir William Arrol & Co Ltd (1962) 3 All ER 623; Wigley v British Vinegars Ltd (1964) AC 307; Duyvelschaff v Cathcart & Ritchie Ltd (1973) 1 ALR 125. 36 But in McWilliams v Sir William Arrol & Co Ltd Viscount Simonds said (at 628) that where the employer is in breach of his duty "there is in that fact some prima facie evidence of a causal connection between the breach and the subsequent damage", and Lord Reid said (at 632) that if general practice or a regulation requires use of a safety device one would assume that it is of some use and that a reasonable man would use it, and "one would assume that the injured man was a reasonable man". There are echoes of Viscount Simonds' words in Chappel v Hart (1998) 195 CLR 232 at [10] per Gaudron J and [68] per Gummow J: Gaudron J said that "the physical injury having occurred breach of the duty is treated as materially causing or contributing to that injury unless there is 'sufficient reason to the contrary'." 37 In McLean v Tedman (1984) 155 CLR 306 Mason, Wilson, Brennan and Dawson JJ said at 314, in the context of an employer's failure to implement an alternative and safe system of work - "It is said nevertheless that the alternative system was not practicable because the employees would have refused to accept it or to have carried it out, notwithstanding that its object and effect was to protect them from injury. We would reject the suggestion that the appellant bore the onus of proving specifically that the alternative system was acceptable to the employees and that they would have carried it into effect. In our view once the appellant was able to point to an alternative and safe system which was practicable in other respects and would have obviated the relevant risk of injury, it was for Brambles to establish that in the circumstances of the case it would have been unable to enforce compliance with the suggested system because its implementation would have been resisted by employees on the ground that the increase in the time taken to do the work would have damaged the men's prospects of taking a second job." 38 The present causation requirement is divorced from breach of duty, and to that extent these observations do not apply. There was a paucity of evidence, and inferences must be drawn on the facts of this case. But there is no encouragement to reluctance to infer that the appellant would have instructed its employees to use the jockey wheel if one was fitted, or that Mr Harper would have used it. Adopting the words of Lord Reid, I would assume that Mr Harper was a reasonable man, albeit angry about the pin. 39 I do not think that the appellant's submission should be accepted. There was an obvious and potentially serious risk in leaving the drawbar dependent on support from the towbar which even slight movement of the trailer, or the tractor, would negate. I do not think it should be inferred that Mr Harper would have taken the risk if there was the ready means of supporting the drawbar by the jockey wheel before he removed the pin. If there had been a jockey wheel on the trailer, the jockey wheel would ordinarily have been used rather than a forklift (or simply driving the tractor away) when coupling and uncoupling the tractor and the trailer, and the appellant should have instructed its employees to use the jockey wheel to support the drawbar even when removing the pin temporarily, for example to replace it. It would not have been difficult or time-consuming. In my view, on the probabilities the inference is that, if a jockey wheel had been fitted, Mr Harper would have used it on the occasion of the respondent's injury, and the respondent would not have been injured.

Orders 40 I propose that the appeal be dismissed with costs. 41 SANTOW JA: I agree with Giles JA. 42 BASTEN JA: I agree with the order proposed by Giles JA and with his reasons. **********

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