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.