Zotti v Australian Associated Motor Insurers Limited [2009] NSWCA 323 | Case summary | Zoe

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Zotti v Australian Associated Motor Insurers Limited [2009] NSWCA 323 | Case summary | Zoe

As par [99] of Handley AJA’s judgment makes clear his Honour identified a requisite “temporal element”. The first sentence of par [101] in which his Honour states that “there is no such temporal requirement” turns on the word “such”. This is a reference to the particular kind of temporal requirement for which counsel for the nominal defendant contended at [100]. That is not the contention in the present case.
The respondent seeks leave to argue that Dominello is wrong with respect to the reasoning on the temporal element. That is why the Court sat a bench of five.
I would not grant leave on the basis that the reasoning should be understood as responsive only to the specific submission made in that case. In Dominello it does not appear to have been contended that the temporal element, considered as a separate “criterion” (to use the language of the joint judgment in Allianz supra at [94] set out at [10] above) was not satisfied on the facts. It is difficult to see how it could be said that the injury was “sustained” (to use the language of the joint judgment in Allianz supra at [94] and of McHugh J at [24]) within a time period in which “driving” was occurring or during which a vehicle with a defect was in “use or operation”. I do not understand Handley AJA to doubt the significance of the temporal element identified in Allianz. (See also Nominal Defendant v GLG Australia Pty Ltd [2006] HCA 11; (2006) 228 CLR 529 at [95].)
The present case turns on when a “collision” ends. It can be accepted that the word “collision” does not refer only to the point of impact. It may well be the case that, for as long as the vehicles which had collided remained in their post-collision positions, the “collision” would still be in existence. Accordingly, any further incident that occurred by another vehicle running in to either car would fall within the meaning of “injury” and “motor accident”.
The position with a remnant of oil slick is, however, further removed. Ms S Norton SC, who appeared for the applicant submitted that the “collision” continues until the effects of the collision have been removed.
In my opinion, that submission should be rejected. After the cars have been removed it cannot be said that the “collision” was still extant. Detritus such as oil is simply aftermath, not a continuation of the original event.
Ms Norton submitted in the alternative that the Court should read the word “caused” broadly when appearing in the chapeau (a) to the definition of injury in s 3.
Ms Norton relied on a passage from the joint judgment in Allianz supra where their Honours said: “[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 …”
Ms Norton submitted that the direct, effective or proximate cause of the applicant’s injury was the oil on the road, which was caused during the driving of the vehicle and/or during a collision involving the vehicle. It may well be an appropriate characterisation to identify the oil as the proximate cause. However, the next step – required by the statute – towards the collision and/or the driving is further removed from the cause that is direct, effective or proximate.
Ms Norton submitted that the words “caused during” do not require the simultaneous occurrence of the events – whether the “driving” or the “collision” – and the injury. The words “caused during” should not be read as if they were the same as “occurs during”. She submitted that a “proximate cause” – namely the collision – can be a causal agent which subsequently leads to an injury.
In this respect it is pertinent to note the composite phrase in the definition: “the injury is a result of and is caused during …” the event. Ms Norton’s submission would, in my opinion, have the effect that the words “caused during” would add nothing to the words “as a result of”. These were “cumulative criteria” (Inasmuch Community Inc v Bright [2006] NSWCA 99; (2006) 45 MVR 234 at [24]) or a “conjunctive requirement” (GLG Australia supra at [96]). The law of statutory interpretation creates a presumption – albeit not always a strong presumption – against surplusage. (See cases referred to in Solution 6 Holdings Ltd v Industrial Relations Commission (NSW) [2004] NSWCA 200; (2004) 60 NSWLR 558 at [74]-[75].)
In any event, it is not, in my opinion, open to this Court to adopt the applicant’s submission.
First, the submission is not consistent with the High Court’s identification of the purpose of the legislation to narrow the concept of the “injury”. (See Allianz supra at [101]-[102] and GLG Australia supra at [25], [95].)
Furthermore, more specifically, at [94] of the joint judgment in Allianz, set out at [10] above, the joint judgment expressed the “temporal criterion” in the following way: “the injury be sustained during certain events including … a collision” (emphasis added). Although Allianz was concerned with sub-par (iv) of the definition of injury, this Court is obliged to follow, it has been determined, the clearly expressed dicta of the High Court even if not part of the ratio decidendi. (See Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 at [134] and [158].)
The injury in this case was not “sustained during” a collision. It is not open to this Court to hold that, even if the collision could, for some purposes, be the “proximate cause” of the injury, that the injury was “caused during” the collision, within the meaning of the Act.
During the course of the hearing the Court was informed that the driver of the vehicle insured by the respondent, Mr Basa, who was a party in the District Court, had been informed of the appeal but had not been joined. Directions were made by the Court requiring the applicant to file and serve a Notice of Motion to join Mr Basa to the appeal, to inform him of the proceedings and to give him an opportunity to make submissions to the Court.
In compliance with the directions, the applicant has, by Notice of Motion, sought an order pursuant to Pt 51.4(3) of the Uniform Civil Procedure Rules 2005 that Rafael Basa be joined as a second respondent. This was supported by an affidavit indicating compliance with the Court’s directions and an affidavit of service. These affidavits are taken as read in proceedings.
Mr Basa has not sought to make any submissions to the Court within the time specified in the directions, of which he has been notified.
The orders I propose are: 1 Order that Rafael Basa be joined as second respondent to these proceedings.

ALLSOP P: I have read the reasons of the Chief Justice. I agree with the orders proposed by him and, subject to what follows (being largely matters of emphasis and comment) with his reasons.
There is much to be said for the argument put clearly and helpfully by Ms Norton SC that the definition of injury in the Motor Accidents Compensation Act 1999 (NSW) (the “Act”), s 3 before its amendment in 2006 had a coherent meaning that conformed with and fulfilled the policy reflected in the secondary material, of removing from the intended insurance cover provided by the Act injuries peripherally connected with a sensible conception of a motor vehicle accident, but under which Mr Zotti’s accident can be seen to fall.
In Ms Norton’s submission, the “injury” (being the personal or bodily injury caused by the fault of the owner or driver etc) is an injury if, but only if, the injury is a result of the events or activities in s 3 (i)-(iv) and is caused during such events or activities.
By this construction, a dual restriction is imposed on the injury intended to be covered by the definition which can be seen to be the fulcrum of an insuring clause of a statutory insurance.
The words “resulting from” have in some cases been said to impose a requirement of proximate cause: see Commonwealth v Butler [1958] HCA 56; 102 CLR 465 at 476 (per Taylor J) and Pickersgill v Freightbases Pty Ltd [1983] 3 NSWLR 117. The High Court, however, in Conkey & Sons Ltd v Miller (1977) 51 ALJR 583 decided unanimously that Butler did not decide any principle of law. Further, this Court in Kooragang Cement Pty Ltd v Bates (1994) 10 NSWCCR 796 at 809-810 (Kirby P, Sheller JA and Powell JA agreeing) declined to follow Pickersgill to the extent that it was authority for the proposition that the phrase “resulting from” embodied a notion of proximate cause. In his reasons in that case, Kirby P referred to similar views expressed by him and McHugh JA in a number of previous cases. Kirby P said the following at 810: “ …Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’, is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death "results from" a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death "results from" the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions. Applying the second principle which Hart and Honoré identify, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus . Or it may be explained in terms of want of sufficient connection. But in each case, the judge deciding the matter, will do well to return, as McHugh JA advised, to the statutory formula and to ask the question whether the disputed incapacity or death ‘resulted from’ the work injury which is impugned.”
Views, however, have not been unanimous. For example, in S and Y Investments (No 2) Pty Ltd (in liq) v Commercial Union Assurance of Australia Ltd (1986) 44 NTR 14, the Supreme Court of the Northern Territory held that words “occurring as a result of” were equivalent to “is caused by” and thereby imposed a requirement of proximate causal connection.
Whatever the reason for the terminology in s 3, the phrase “is a result of” can be seen to require some kind of causal relationship between the injury and the event or occurrence. The second of the cumulative requirements: “the injury is caused during” the relevant events or occurrences can be seen to limit further the operation of the definition, by restricting the response of the statutory insurance to injuries which can be seen to have a cause occurring during the events or occurrences in (i)-(iv). This would not be surplusage being added. The phrase “a result of” may be seen to have a broader content than “caused”; but, more specifically, the cause must occur during the relevant event or occurrence in (i)-(iv). Looking at the matter thus, it would not be a requisite that the injury be sustained or be suffered or occurred during the relevant event or occurrence in (i)-(iv); rather, the necessary constriction is that the cause of the injury occur during the event or occurrence. This approach, it might be thought, would more happily sit with the words “the injury is caused during” the event or occurrence. If a notion of “sustaining” or “suffering” the injury during the event or occurrence were intended it might be thought that such phrases would have been used rather than the words in fact employed: that “the injury is caused during”.
Such a construction would limit the response of the statutory insurance to circumstances more narrow than the kinds of peripheral connection with a motor vehicle and its use that arose in the jurisprudence dealing with “arising out of” the use of motor vehicle: see for example Government Insurance Office (NSW) v R J Green & Lloyd Pty Ltd [1966] HCA 6; 114 CLR 437; State Government Insurance Commission v Stevens Brothers Pty Ltd [1984] HCA 32; 154 CLR 552; Dickinson v The Motor Vehicle Insurance Trust [1987] HCA 49; 163 CLR 500 and many other cases. In this jurisprudence, the phrase “arising out of” the insured peril imposed no requirement that the loss be proximately caused by that peril; see the above cases and also Clover, Clayton & Co Limited v Hughes [1910] AC 242 at 245.
As well as fulfilling the evident policy of reducing the scope of the insurance cover under the Act, the above construction would ensure that the operation of the Act and the insurance provided under it were not limited in circumstances that might be capricious or arbitrary. As this very case shows, if the actual injury must be sustained or suffered during the events or occurrences set out in (i)-(iv) persons can be left without effective insurance cover in circumstances where the injury constitutes the direct sequelae of the accident and the cause of the injury occurred during, and was intimately bound up with, the motor vehicle accident. On an ordinary appreciation of events, an injury can be seen to be caused by a motor vehicle accident if the relevant causal link occurred during the collision (or other event or occurrence in (i)-(iv)).
Unconstrained by authority I would be minded to agree with these arguments, which were, in substance, put by Ms Norton. However, as I read [93] and [94] of the reasons of Gummow, Hayne and Heydon JJ in Allianz Australia Insurance Limited v GSF Australia Pty Ltd [2005] HCA 26; 221 CLR 568 at 596 these arguments are precluded. This is also the view of the Chief Justice with which I agree. I note, however, that [101] of their Honours’ reasons in Allianz may conceivably affect [93] and [94]. Nevertheless, though [93] and [94] do not, on my reading, form part of the ratio of the judgment of their Honours, I would take them to fall within the category of “seriously considered dicta”: Farah Constructions Pty Limited v Say-Dee Pty Limited [2007] HCA 22; 230 CLR 89 at 150-151 [134] and 159 [158]. In the light of these paragraphs of the judgment of Gummow, Hayne and Heydon JJ in Allianz the definition of “injury” is to be construed as requiring the injury to be sustained during the relevant event in (i)-(iv). That did not happen here.
Though the definition of “injury” in s 3 of the Act has been amended to remove these particular provisions, they have been moved, in substance, into the definition of “motor accident”. A not dissimilar construction will arise under that provision.
During the argument on the appeal there was reference to a notion of causation in insurance being of a different character to ordinary notions of causation. The High Court in Allianz at [101] also referred to questions of causation in insurance law. Insurance is, of course, an area of discourse in which questions of causation constantly arise. Phrases such as “proximate cause” and “dominant cause” have had a particular place in the law of insurance. The view prevailed for many years that for the purpose of answering a question about the response of an insurance policy there could be only one cause: National & General Insurance Co Ltd v Chick [1984] 2 NSWLR 86 at 97-98 where Samuels JA quoted Colinvaux R, The Law of Insurance (4th Edition) (Sweet & Maxwell 1979) at [4.32] as follows: “A loss may be the combined effect of a whole number of causes, but, for the purposes of insurance, one direct or dominant cause must in each case be singled out.”

This approach, however, does not appear now to be the law in Australia or England: City Centre Cold Store Pty Ltd v Preservatrice Skandia Insurance Ltd (1985) 3 NSWLR 739 approved in this Court in HIH Casualty & General Insurance Ltd v Waterwell Shipping Inc (1998) 43 NSWLR 601; and by the Full Court of the Federal Court in McCarthy v St Paul International Insurance Co Ltd [2007] FCAFC 28; 157 FCR 402 at 429-431 [88]-[91] and 421 [56] and 422 [58] and see also J J Lloyd Instruments Ltd v Northern Star Insurance Co Ltd (The ‘Miss Jay Jay’) [1987] 1 Lloyd’s Rep 32; though, cf Allianz at [101]; Australian Casualty Co Limited v Federico [1986] HCA 32; 160 CLR 513 at 534-535; and March v Stramare (E & MH) Pty Ltd [1991] HCA 12; 171 CLR 506 at 511. See generally M Davies “Proximate Cause in Insurance Law” (1996) 7 Insurance Law Journal 135; M Clarke “Insurance: The Proximate Cause in English law” (1981) 40 Cambridge Law Journal 284 and the discussion of causation and insurance by McColl JA in Lasermax Engineering Pty Limited v QBE Insurance (Australia) Limited [2005] NSWCA 66; 13 ANZ Insurance Cases 61-643 at 77,858-60 and by me in McCarthy at 429-438 [88]-[115].
Whether or not the subject matter of the Act, concerned as it is with insurance, would require any particular approach to be taken to the notion of causation and the effect of such on s 3 was not debated before us.
HODGSON JA: One of the objects of the Motor Accidents Compensation Act 1999 (the Act) set out in s 5(1)(b) of the Act has always been “to provide compensation for compensable injuries sustained in motor accidents”: and the Act provides a scheme to ensure that there will be insurance cover for such injuries. The Act would appear to reflect a perception that, because the risks of injury from motor accidents are so great, there should be particular regulation of claims arising from negligently-caused motor accident injuries that both ensures the availability of insurance cover and regulates the way such claims are dealt with.
However, until amendments in 2006, the Act in s 3 contained the following definitions of “injury” and “motor accident”: 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:

Consider the following scenario. A collision occurs between two motor vehicles, as a result of the fault of the driver of one only of those vehicles. The “innocent” vehicle comes to rest in a position on the road that is hazardous to other road users. Shortly after the accident, a third vehicle arrives and, without negligence of its driver, collides with the “innocent” vehicle, injuring persons in the third vehicle.
Injuries caused to the persons in the third vehicle would undoubtedly be injuries sustained in a motor accident, as those words are generally understood; and all the policy reasons for ensuring the availability of insurance and for regulating claims would apply with full force. It would be alarming to think that one’s compulsory motor vehicle insurance did not cover such a situation; and also alarming to think that the injured persons would not have access to compulsory motor vehicle insurance.
However, on one view, these injuries would not be within the Act as originally enacted (or indeed, within the Act as amended in 2006: see s3A(1)). This is because, while these injuries were undoubtedly “caused by the fault of the … driver of a motor vehicle in the use or operation of the vehicle”, and were “a result of” “the driving of the vehicle” and of “a collision … with the vehicle” (that is, the original collision), there is a real question whether they were “caused during” either “the driving of the vehicle” or “a collision … with the vehicle”. No injury occurred until the third vehicle collided with the “innocent” vehicle, which is not “the vehicle” referred to in sub-pars (i) and (ii) of par (a) of the definition: by the time this second collision occurred, “the driving of the vehicle” (that is, the vehicle in respect of which there was fault) had ceased, and seemingly the collision with that vehicle had also come to an end.
It is unlikely that the legislature intended that injuries sustained in the way I have outlined would not be covered by the Act. However, there appear to be only two possible ways of avoiding that result: (1) by giving a wide meaning to “caused during”; or (2) by giving a wide meaning to “during a collision”.
As regards (1), it could be argued that the requirement that an injury be caused during the driving of the vehicle or during a collision with the vehicle is satisfied if the significant causative factors that in due course bring about the injury are established during the event in question, even though the actual sustaining of the injury is delayed beyond that event; and indeed, but for the authority referred to later, I would be inclined to accede to that argument.
As regards (2), it could be argued that “during a collision” is not limited to the time when vehicles are actually in contact, but extends to some time thereafter, such as the time when vehicles involved in the collision come to a stop.
Dicta of the High Court of Australia in Allianz Australia Insurance Limited v GSF Australia Pty Limited [2005] HCA 26; (2005) 221 CLR 568 appear to be against the first of those possibilities, in particular pars [93] and [94] of the judgment in that case, quoted by Spigelman CJ at [10] above. (I note incidentally that in the first sentence of par [94], the phrases “a result of” and “is caused” appear to have been transposed; but this does not affect the thrust of what is said.) According to those dicta, the injury must be sustained during the relevant event; so in my opinion this Court should accept that it is not sufficient that the significant causal elements be established during the event, if the actual injury occurs some time later.
As regards the second possibility, I am inclined to accept that the phrase “during a collision” does not delimit a time that extends only to the period during which the colliding vehicles are actually in contact. In my opinion, in those cases where two vehicles come to a stop shortly after the impact, the phrase would extend as far as the time when they come to a stop. However, to extend the period covered by “during a collision” further, for example to the time when the vehicles (or perhaps debris) are removed from the road, is less easy to justify: it would require the word “collision” to be read as meaning something like “collision incident”, and in my opinion this is not justified by the language.
I would add, that if “collision” could be read as “collision incident”, then the phrase “during a collision” could extend not merely to the time when vehicles are removed, but also to the time when debris and oil spills from the collision are removed, thus covering the present case.
Accordingly, having regard to the dicta in Allianz and to my understanding of the phrase “during a collision”, I am driven to the conclusion that neither my hypothetical scenario nor the present case falls within the Act, either as originally enacted or (having regard to s 3A) as presently in force. This seems to be unsatisfactory and deserving of consideration by the legislature, unless the High Court were to take a different view.
I would add that in my opinion, the previous decision of this Court in Dominello v Dominello [2009] NSWCA 95 cannot be reconciled with the dicta of the High Court in Allianz. In Dominello, the Court appears to have regarded it as a sufficient compliance with the temporal requirements in the definition of “injury” that the injury be caused by the fault of the driver occurring during the driving of the vehicle; whereas the High Court has said that the injury itself must be sustained during the driving of the vehicle, or during some other event or period identified in sub-pars (ii) to (iv) of par (a) of the definition.
For those reasons, I agree with the order proposed by Spigelman CJ.
McCOLL JA: I have read the reasons of the Chief Justice. I agree with his reasons and with the orders his Honour proposes. I also agree with Allsop P’s additional reasons.
CAMPBELL JA: I have had the advantage of reading the reasons of all other members of the Bench, and agree with the orders proposed by the Chief Justice. However my reasons differ in some respects from those of other members of the Bench. As the issue involved in this case is quite important, I should state those reasons fairly fully.
On 19 December 2005, there was a collision at an intersection between two motorcars, one of which was driven by Mr Basa. A couple of hours after that collision had occurred, and after the vehicles involved in it had been removed from the scene, the Applicant rode his bicycle through the intersection, slipped on some oil on the roadway, lost control of the bicycle, and was seriously injured. The Applicant contends that the collision was caused by the negligent driving of Mr Basa, and that the oil on the roadway on which the Applicant slipped was released during that collision.
A Statement of Claim was filed in the District Court on the Applicant’s behalf on 12 August 2008, naming Mr Basa as a defendant and alleging negligence against him. (It also named another defendant, but that does not matter for present purposes.)
If the Applicant’s rights concerning his injury had been governed by the ordinary law of torts, a three year limitation period would have applied to the litigation under section 50C Limitation Act 1969, running from the date on which the cause of action was discoverable. In this case, that date would be the date on which the accident occurred and the damage was suffered. The consequence would be that the action had been brought within time. However, section 50A(3) Limitation Act provides that the Division within which section 50C occurs “does not apply to a cause of action on a claim arising under the Motor Accidents Compensation Act 1999.” The important issue in the present case concerns whether the cause of action on which the Applicant sues Mr Basa is a cause of action on a claim under the Motor Accidents Compensation Act 1999 (the MAC Act).
Relevant definitions in section 3 MAC Act as they existed at the date of the accident are (so far as relevant): “ claim means a claim for damages in respect of 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.

Chapter 4 MAC Act, running from sections 66 to 121 inclusive, establishes procedures for the making and determination of claims. In the broadest terms, there are three levels at which a claim might come to be determined. A claim must always be made in the first instance to the insurer. If it is not resolved by agreement with the insurer, there is provision for the claim, or those aspects of the claim which remain unresolved, to be submitted for a process of administrative assessment. In certain limited circumstances, if administrative assessment does not satisfactorily resolve the claim it might then be determined by a court.
Section 72 MAC Act, as applied to the circumstances of the present case, required a claim to be made by the Applicant to Mr Basa’s insurer within six months from the date of the accident unless, pursuant to section 73, “the claimant provides a full and satisfactory explanation for the delay in making the claim.” The Applicant’s solicitor made a claim on Mr Basa’s insurer, AAMI, more than six months after the date of the accident. It is not a matter of current contention whether a full and satisfactory explanation was provided for that delay.
An insurer has an obligation under section 81 MAC Act to give written notice whether it admits or denies liability for the claim, no later than three months after the claimant gave notice of the claim. In the present case, AAMI gave notice on 16 October 2006 denying liability, on the ground that the Applicant’s injury was not caused during any of the four limbs of para (a) of the definition of “injury” contained in section 3 MAC Act.
Section 91(2) MAC Act enables a claim to be referred for administrative assessment if it is a claim in respect of which the insurer wholly denies liability. There is provision in section 92 for claims to be exempt from assessment in certain circumstances, and for the Principal Claims Assessor to issue the insurer and the claimant with a certificate confirming that the claim is exempt from assessment. Application was made for the issue of such a certificate, and it was issued on 18 January 2007.
Section 108 MAC Act prevents a claimant from commencing court proceedings in respect of a claim unless either a certificate under section 92, or a certificate under section 94 has been issued. Thus, the Applicant became entitled to commence court proceedings when the section 92 certificate was issued on 18 January 2007.
Section 109 MAC Act provides time limitations on the commencement of court proceedings. Pursuant to section 109(1) those limitations apply to “a claimant”, and “in respect of a claim”. Section 109(5) provides: “The Limitation Act 1969 does not apply to or in respect of proceedings in respect of a claim.”
One of the circumstances in which section 109 permits a claimant to commence proceedings in respect of a claim is if the claim is not brought more than three years after the date of the motor accident to which the claim relates. If the action in tort that the claimant wished to bring against Mr Basa was one concerning which the Applicant was “a claimant” within the meaning of the MAC Act, and that action in tort was “proceedings in respect of a claim” the effect of section 109(5) would be that the limitation periods provided under the Limitation Act did not apply to it, but the claim was within time pursuant to section 109(1).
Section 110 provides a different time limitation on a claimant commencing court proceedings in respect of a claim. It operates as an additional limitation to that arising under section 109. It provides: “(1) The insurer of a person against whom a claim is made may give the claimant notice requiring the claimant to commence court proceedings in respect of the claim if:

AAMI made application under that section to intervene in the proceedings commenced by the Applicant, and an order permitting AAMI to intervene had been made before the matter came before Judge Neilson on 5 December 2008.
On that date the Notice of Motion of present relevance that his Honour dealt with was one by the Applicant, seeking an order pursuant to section 110(4) MAC Act “reinstating the plaintiff’s claim pursuant to that Act as of the date of filing of the Statement of Claim herein”. By that time, AAMI had given Mr Basa notification that it would not indemnify him in relation to the Applicant’s claim, and notification of the terms and hearing date of the Notice of Motion. Mr Basa did not appear at that hearing, and it was counsel for AAMI, exercising its rights as intervenor, that opposed the granting of the order reinstating the plaintiff’s claim.
The judge held that the plaintiff had provided a full and satisfactory explanation for his delay within the meaning of section 110(5). Even so, the judge declined to make an order to reinstate the claim, on the ground that it would be futile, because the Applicant’s injury was not an “injury” within the meaning of the MAC Act. His reasons are set out in Spigelman CJ’s judgment at [5].
If the judge were right in holding that the plaintiff had not sustained an “injury” within the meaning of the MAC Act, it seems to me that his dismissal of the Notice of Motion would more correctly have been put on the basis that the power to make an order under section 110(4) did not apply to the litigation before him, because there was no “claim” within the meaning of the MAC Act. Even so, his Honour has decided that the Applicant has not sustained an “injury” within the meaning of the MAC Act and the parties will remain bound by that determination unless this Court, or the High Court, reverses it.
When terms defined in the MAC Act have the same meaning in Mr Basa’s third party policy, and the indemnity provided by the third party policy concerns “liability in respect of … injury” the practical effect of the judge’s decision is that the Applicant is suing an uninsured defendant concerning the serious injuries he has sustained.
Whether the collision was caused by the negligence of Mr Basa has not been decided. But the effect of the decision below is that, if the Applicant persists with the litigation against Mr Basa at all, it will be at the risk of Mr Basa having insufficient assets to meet a judgment.
It is the insurance consequences of the decision below that give this case its importance. Compulsory third party insurance concerning bodily injury has existed in this State since 1930, and the manner of operation of that system of insurance has the potential to affect nearly everyone in the State. Construction of the Definition of “Injury”
Immediately before the amendments made by the Motor Accidents Amendment Act 1995, the Motor Accidents Act 1988 contained the following definitions: “‘ injury’ means personal or bodily injury, and includes:

The form of third party policy required by section 9 and schedule 1 of that Act included, relevantly: “The insurer insures the owner of the motor vehicle and any other person who at any time drives the vehicle (whether or not with the consent of the owner) against liability in respect of the death of or injury to a person caused by the fault of the owner or driver of the vehicle in the use or operation of the vehicle in any part of the Commonwealth (whether or not on a public street).”
The Motor Accidents Amendment Act 1995 replaced the definition of “injury” with a definition identical to that now found in the Motor Accidents Compensation Act 1999.
The Explanatory Memorandum for the Motor Accidents Amendment Bill 1995 said that the new definition of “injury” was inserted “… in order to remove an overlap that exists between motor accident claims and workers compensation claims.”
That was its only explanation for the amendment. It is an available aid to construction of the legislation (section 34 Interpretation Act 1987). There was already provision in section 16 Motor Accidents Act (now mirrored in section 15 MAC Act) that a third party policy did not provide indemnity against a liability to pay compensation under any Workers Compensation Act. The mischief identified by the Explanatory Memorandum was that a common law claim brought by a worker concerning an injury sustained in the course of employment and that also involved use or operation of a motor vehicle could fall under both the common law extension of the standard workers compensation policy (required by section 155(1) Workers Compensation Act 1987) and also be a motor accident claim.
The 1995 amending Bill was first introduced in the Parliament in the Legislative Council on 16 November 1995. The relevant Minister was the Attorney-General, the Honourable J W Shaw. He explained the change to the definition of “injury” at page 3322 of Hansard: “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 then went on, in sections 104, 115(1)(a), 116(2) and the section 127 definition of “claimant” to create rights and obligations by reference to whether “death or bodily injury” has been “caused by or has arisen out of the use of a motor vehicle”, or closely similar phrases.
In Western Australia, the Motor Vehicle (Third Party Insurance) Act 1943 (WA), as contained in the reprint of 11 March 1992 and also as in the reprint as at 20 November 1998, contains in section 3(7) provision that: “For the purposes of this Act, the death of or bodily injury to any person shall not be taken to have been caused by a vehicle if it is not in consequence of the driving of that vehicle, or of the vehicle running out of control.”
Various sections of that Act then imposed liabilities by reference to the phrase “accident which results in the death of or causes bodily injury to any person and is directly caused by, or by the driving of, a motor vehicle”.
All of these pieces of interstate legislation apply only if the injury in question was caused by one or other of a specified list of causes. Two of them are cast in the form of double negatives, but that does not affect the substance of the meaning. However none of them imposed a temporal requirement, of when the injury was sustained, to further narrow the scope of injuries within the legislation.
There is no indication in the Second Reading Speech or the Explanatory Memorandum that the new 1995 NSW definition of “injury” was intended to do other than narrow the previous definition of “motor accident” so that double insurance between motor accident claims and workers compensation claims was eliminated, and so that an “injury” needed to be caused by particular types of event or circumstance narrower than “use or operation of the vehicle”. Implicit in that was that there was really a relation of cause and effect between that type of event or circumstance and the injury, not just the motor vehicle providing the occasion or setting for the injury, as could happen if “fault in the use or operation of the vehicle” was the test of compensability.
Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; (2005) 221 CLR 568 was the very sort of case that both the Attorney-General, and the Explanatory Memorandum, explained the 1995 amendments as seeking to overcome. A worker, acting in the course of his employment, was injured while unloading a truck. The truck had a mechanical unloading mechanism (called a “T-bar”) that ordinarily would enable the truck to be unloaded without undue effort on the part of employees. However, that mechanism was broken and the worker’s superior directed him to unload the truck by hand using a crowbar as a lever (itself an unsafe system of work) and the worker was injured in the course of doing so. The dispute was in essence a dispute between a motor vehicle insurer and a workers’ compensation insurer.
All judges in the High Court agreed that the worker had not suffered an “injury” within the meaning of the Motor Accidents Act. That conclusion, resulting in it being the workers compensation insurer and not the motor vehicle insurer that bore the loss was, with respect, in accord with the objectives of the 1995 legislation.
The ratio (or perhaps the ultimate part of the ratio) of the decision of Gummow, Hayne and Heydon JJ is expressed at 598 [102]-[103]: “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: See Australian Casualty Co Ltd v Federico (1986) 160 CLR 513 at 534-535; March v Stramare (E & M H) Pty Ltd (1991) 171 CLR 506 at 511. That construction is consistent with the subject, scope and purpose of the 1995 Act.

However, this Court must also bear in mind what their Honours said at 596 [93]-[94], quoted by Spigelman CJ at [10].
There are some circumstances in which, if one ignores the context in which the words are used for the moment, an injury could be “caused during” a particular event, but not “sustained during” that event. The relevant meaning of “sustained” given by the Macquarie Dictionary is: “to undergo, experience, or suffer (injury, loss, etc)”. To sustain an injury during an event is for the injury to actually occur while that event is in progress. By contrast, the notion of an injury being caused during an event can include a situation where the cause of the injury (though not the injury itself) happens during that event. Delayed onset of consequences is far from uncommon.
But in Allianz v GSF the judgment of the plurality at 596 [93]-[94] was not construing words separated from their context. A relevant part of the context was that “caused during” was part of a compound expression “the injury is a result of and is caused during”. Their Honours rejected the notion that “result” and “cause” have different meanings in the definition of “injury”. They also accepted that the “is a result of” phrase is a different criterion, that is cumulative on the “is caused during” phrase, rather than being a hendiadys (see Pearce and Geddes, Statutory Interpretation in Australian, (6th ed, 2006) LexisNexis Butterworths, at para [4.35]). As well, their Honours were influenced by a stated objective of the Act (contained in the new section 2A introduced into the Act by the 1995 amendments) of “keeping the overall costs of the scheme within reasonable bounds so as to keep premiums affordable”, and the requirement introduced by the new section 2B to interpret a provision of the Act in a way that would promote an object of the Act (Allianz v GSF at 598 [101]). This reliance in Allianz v GSF on sections 2A and 2B of the 1995 amendments does not provide a relevant ground of distinction for the definition of “injury” in the MAC Act, because sections 5 and 6 of the MAC Act contain corresponding provisions.
Had we been unconstrained by authority, my preference would have been to construe the “is a result of and is caused during” phrase in the definition of “injury” in the MAC Act as a hendiadys. So doing would have enabled the objectives advanced in the Explanatory Memorandum and the Second Reading Speech to be achieved. The repetition of thought in the phrase could be regarded as a further underlining, beyond that achieved by the “if, and only if” phrase, of the need for a causal connection. Such a reading would have avoided a person in a situation like that of the example given by Hodgson JA being without insurance cover. A further example is that if a vehicle were to run out of control due to the fault of the driver and collide with someone’s house, so weakening it that a few minutes later part of the house collapsed and injured an occupant, that injury would not be “sustained during” the vehicle’s running out of control, and so would be outside the cover of the vehicle’s third party policy, on the Allianz construction of “injury”. Examples could be multiplied. It is very hard to see what desirable policy objectives Parliament could have been seeking to achieve by denying cover in such situations, with the possible outcome that the injuries go uncompensated from any source. While one can readily accept that the CTP scheme is not 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 (cf Allianz at 582-3 [43]-[44] per McHugh J), providing compensation for injuries sustained as a consequence of the negligent driving of a motor vehicle where the injuries are sustained by someone other than the negligent driver seems to be at the core of its purpose. The construction adopted in Allianz has the effect of making the compensability of injuries depend not only on the manner in which they were caused, but also on the time at which they were sustained. It also gives rise to an uncomfortable prospect that it will be argued that a complication or consequence of a condition initially sustained in a motor accident – say, a stroke precipitated by the trauma of the accident, or peritonitis following some internal injuries sustained in the accident and not treated fast enough – is a separate injury to that sustained during the accident, and so outside the scope of compensability. While it clearly needs to be recognised that an objective of both the 1995 amendments and the MAC Act is to keep premiums “affordable”, advancing that purpose in the construction of the Act does not require every provision in it to be construed in the way least favourable to providing cover.
I have some doubt about the proper way of reading Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 at 150-1 [134], 159 [158] and 164 [178]. One reading is to treat it as saying that it is wrong for an intermediate Court of Appeal to depart from “seriously considered dicta” of a majority of the High Court (simpliciter). Another is to treat it as saying that it is wrong for an intermediate Court of Appeal to depart from seriously considered dicta of a majority of the High Court concerning a topic on which there is a long-established line of authority. Another is that the clear finding that this Court had been wrong to depart from views about the first limb of Barnes v Addy (1874) LR 9 Ch App 244 that had been expressed in Consul Development Pty Ltd v DPC Estates Pty ltd (1975) 132 CLR 373 is based on particular facts of the case. It is not necessary to decide that question in the present case, nor to form a view about whether paras [93]-[94] of Allianz v GSF are dicta, because there is another factor that would make it inappropriate for this Court now to depart from the construction expressed at [93]-[94] of Allianz v GSF even if it were free to do so. It is that paras [93]-[94] of Allianz v GSF have been followed in this Court in Inasmuch Community Inc v Bright [2006] NSWCA 99; (2006) 45 MVR 234 at [24] in Walfertan Processors Pty Ltd v Dever [2006] NSWCA 289; (2006) 47 MVR 140 at [22] and in Hooker v Gilling [2007] NSWCA 99; (2007) 48 MVR 136 at [38], and leave has not been sought to re-argue any of those cases.
Even though the definition of “injury” that was construed in Allianz v GSF has now been removed from the MAC Act by the Motor Accidents Compensation Amendment Act 2006, the decision in Allianz v GSF remains of importance. Under the 2006 amending Act the definitions of “injury” and “motor accident” were amended to read: ““ injury means personal or bodily injury and includes: