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Taylor v Henry Walker Eltin Contracting Pty Ltd

 

[2005] QSC 157

 

SUPREME COURT OF QUEENSLAND

 

CIVIL JURISDICTION

 

FRYBERG J

 

No S6892 of 2002

 

STEVEN GEORGE TAYLOR

Applicant

and

 

HENRY WALKER ELTIN CONTRACTING

PTY LTD (ACN 009 625 138)

Respondent

 

BRISBANE

DATE 07/06/2005

 

JUDGMENT

 

HIS HONOUR:  This is an application by the plaintiff in an action for personal injuries for some procedural relief and also for the summary determination of certain questions.  There is no contest as to the procedural relief and I shall therefore order by consent:

 

  1. In accordance with paragraph 2 of the application with the further words "save that execution may not be levied on any Judgment without leave of the Court";

 

  1. That the plaintiff's name be amended to Stephen, spelt T-E-P-H-E-N, in all documents filed hereafter;

 

The major point at issue involves the construction of the Motor Accident Insurance Act 1994.  The parties are agreed that this is an appropriate case for the determination of preliminary questions and that not only should I direct that questions be determined but that I should proceed to determine them instanter.  I agree with that approach.

 

The three questions upon which they are so agreed are as follows:

 

a)  Are the defendant's wrongful acts and omissions, or any of them, as stated in paragraphs 36 to 38 of the agreed statement of facts or alternatively the further amended statement of claim, in each case "a wrongful act or omission ... by a person other than an injured person ... in respect of" the unidentified tip truck referred to in paragraph 21 of the agreed statement of facts, within the meaning of section 5(1)(b) and clause 2 of the schedule to the Motor Accident Insurance Act 1994 as enacted to 3rd August 1999;

 

b)  Is the plaintiff's claim, based upon such statement of agreed facts, a "motor vehicle claim" within the meaning of section 4 of the Motor Accident Insurance Act;

 

c)  If the answer to the questions at (a) and (b) are "yes" is the plaintiff's claim against the defendant not maintainable or a nullity by reason that the plaintiff did not comply with the provisions of part 4 of the said Act.

 

There seems to be no material distinction between the statement of agreed facts and the facts set out in the further amended statement of claim and I shall for present purposes refer only to the statement of agreed facts. 

 

That statement discloses that the plaintiff was, at the time he was injured, working on a construction site for the south-east bus lane project during the course of its construction in 1999.  He was employed by a company named Cobia Constructions Pty Ltd as a building construction labourer.  Cobia, which is not a party to this action, was subcontracted to the present defendant to perform certain work on the construction site.  The defendant was the principal contractor on the site which constituted stage 4 of the project.

 

The plaintiff was performing his duties as a worker at the time he was injured and the defendant was the occupier of the workplace and was the person in control of it.  It was also a principal contractor within the meaning of the Workplace Health and Safety Act 1995.  It is common ground that the defendant owed the plaintiff a duty of care to take reasonable steps to avoid or minimise foreseeable risks of injury to the plaintiff while he was performing duties at the workplace. 

 

The workplace included an access road which ran generally north and south parallel to the existing motorway between South Brisbane and Eight Mile Plains.  The access road ran parallel to a wall at the western edge of that road.  There was no clear differentiation between any work area at the base of the wall and the access road.  The road was approximately three to four metres wide and was used by any vehicles which needed to gain access to the site. 

 

The plaintiff was injured when he was struck by a tip truck which was reversing along the access road.  It hit the plaintiff who was, in order to perform his duties, standing on the road.  He was, in fact, involved in scrutinising a dumpy level in order to enable other workers to take readings for the construction of a retaining wall.  He did not hear the truck approaching and it is alleged and agreed for the purposes of this application the truck did not operate a reverse beeper warning sound.  The plaintiff alleges, and it is agreed for the purposes of the application, that he fell and suffered personal injury.  The truck has not been identified but it is common ground that it was not owned by the defendant nor was the driver of it employed by the defendant.

 

It is common ground that the injury was caused by, through or in connection with a motor vehicle.  It is also common ground that the plaintiff did not comply with the provisions of part 4 of the Motor Accident Insurance Act as it stood at the relevant time before commencing the present action.  The relevant provision in particular is s 39(5).  It is agreed if it be material that the plaintiff did comply with the provisions of the Personal Injuries Proceedings Act 2002.

 

It is agreed that the defendant had the power and authority to control the movement of vehicles, including tip trucks, on and around the worksite and to implement or cause to be implemented safety procedures at the worksite such as would eliminate or minimise foreseeable risks of injury to workers and other persons at the site.  In particular, it is agreed for the purposes of the application that no barricades were erected between where the applicant was working and the access road, and no signs or safety barriers were erected to separate workers from the access road.  It is further so agreed that no designated truck turning area was located immediately to the south of the point where the applicant was working such as to reduce or avoid the necessity for vehicular traffic to reverse along the access road. 

 

The questions which have been asked arise because the defendant has pleaded in its defence that:

 

(c)the injuries suffered by the plaintiff were personal injuries caused by, through or in connection with a motor vehicle, such that the Motor Accident Insurance Act 1994 applies to the injuries, by virtue of the provisions of section 5(1) of the Act;

 

(d)the plaintiff's claim is a motor vehicle accident claim within the meaning of that term in and for the purposes of the Motor Accident Insurance Act 1994;

 

(e)the plaintiff has failed to comply with the provisions of part 4 of the Motor Accident Insurance Act prior to commencing this proceeding;

 

(f)in the premises, the plaintiff's claim against the defendant is not maintainable;

 

(g)the plaintiff's claim and this proceeding is a nullity by virtue of the plaintiff's failure to comply with the provisions of the Motor Accident Insurance Act, and in particular sections 51A and 52 of the Act.

 

A preliminary issue arises as to whether I ought to determine the first question in so far as it refers to s 5(1)(b) of the Act.  That arises because as will be observed from the wording of the section, if the question is determined in a way which is favourable to the plaintiff, the only result of the determination will be that the Act is not found not to apply by reason of the matters referred to in the question.

 

It will remain open to the defendant to argue at trial that the Act applies by reason of matters other than those referred to in the first question and, in particular, to argue that the injury is one to which the Act applies within the meaning of section 5 by reason of the negligence of the driver of the truck.  That is not an argument which the defendant wishes to advance today but I did not understand the defendant to forego the right ever to argue it. 

 

Since it seems to me highly likely that there could be, with further facts, an argument that the truck driver was negligent, s 5 may have the result that the injury is one to which the Act applies even if I answered the first question (in relation to that section) favourably to the plaintiff.  That being so, I do not think I ought to determine the first question in so far as it refers to s 5.  There is every possibility that I would be wasting my time and that the determination would not result in any benefit to the parties.

 

The same cannot be said of the first question in so far as it relates to cl 2 of the schedule to the Act.  The reason that cl 2 has some relevance is to be found in the interaction of a number of sections of the Act.  Essentially, the provision which prevents the plaintiff from proceeding is s 39(5) of the Act although s 52 is also an obstacle.

 

Section 39(5) of the Act relevantly provides that a claimant may bring a proceeding in a Court for damages based on a motor vehicle accident claim only if he has given notice to an insurer who may be liable on the claim under the statutory insurance scheme as required under the division in which that section is contained, that is division 3 of part 4 of the Act.

 

It is unnecessary to refer to the balance of that subsection as it has no materiality in the present case.

 

"Claimant" is defined in the Act to mean a person by whom or on whose behalf a claim is made and "claim" is defined to mean motor vehicle accident claim.  "Motor vehicle accident claim" is defined, so far as is presently relevant, to mean a claim for damages based on a liability for personal injury arising out of a motor vehicle accident.  And "motor vehicle accident" is defined to mean an incident in which personal injury is caused by, through or in connection with a motor vehicle.

 

That chain of definitions then would seem to establish that the plaintiff is a claimant within the meaning of s 39(5).  He has brought a proceeding in a Court, that is the proceeding in which the present application is brought.  It is, on its face, a proceeding for damages, and it is based on a motor vehicle accident claim within the definition to which I have just referred.  It follows that it may be brought only if the other conditions, which I have quoted from the section, are complied with.  Failure to comply with that provision is fatal to the action and the plaintiff concedes that if there has been a non-compliance and he should have complied, then the action cannot succeed.  It is too late to start fresh proceedings.

 

The reference in s 39(5) to giving notice to an insurer who may be liable on the claim under the statutory insurance scheme requires further reference to definitions.  The statutory insurance scheme means the insurance scheme established by the Act.  The requirement to give notice is the requirement imposed by s 37(1) of the Act.  The word "insurer" in the act has meaning given to it by s 31, and I shall return to that section in a moment.  An insurer who may be liable on the claim is identified by s 52.  That section mandates that both the insured person and the insurer be joined as defendants and be made defendants jointly.  It is unnecessary to elaborate, for present purposes, on the ambit and signification of the word "may" in s 39(5)(a). 

 

"Insurer" then, to revert to the word which appears in that subsection is identified by s 31 of the Act.  In the circumstances of the present case where the vehicle is unidentified, the insurer for the scheme is the Nominal Defendant.  That is because neither the motor vehicle, nor any insurer under a CTP insurance policy can be identified.  The other elements of s 31(1) are satisfied.  The term, "CTP Insurance Policy" is a defined term.  It means compulsory third party insurance policy, which means, so far as is relevant, a policy of insurance under the Act for a motor vehicle insuring against liability for personal injury caused by, through, or in connection with the motor vehicle.  All of the elements of that definition are relevantly satisfied in the present case, except perhaps for the one in debate.  That is the requirement for a policy of insurance under this Act.  A policy of insurance under the Act is, by s 23, a policy in terms of the schedule to the Act.  The schedule to the Act provides, by cl 2, that the insured - that the person insured by the policy - is "the owner, driver, passenger or other person whose wrongful act or omission in respect of the insured motor vehicle causes injury to someone else and any person who is vicariously liable for the wrongful act or omission". 

 

The consequence then of that elaborate excursion through the Act is that the obstacle to the plaintiff's action, which arises under s 39(5), arises if the defendant is an insured person within the definition just quoted.  That requires a determination whether on the agreed facts it can be said that it is a person whose wrongful act or omission "in respect of the insured motor vehicle" caused the injury. 

 

The plaintiff submits that it cannot be said that in the circumstances of the present case, the wrongful act or omission was in respect of the tip-truck.  It will be recalled that the allegation against the defendant is that there were no barriers and that there was no turning area at a relevant point. 

 

The question is whether there is a sufficient connection between the liability which it is sought to impose and the tip-truck.  On behalf of the plaintiff Mr Douglas SC referred me to the passage from the judgment of Justices Brennan, Deane and Gaudron in Technical Products Pty Ltd v. State Government Insurance Office (Qld) (1989) 167 CLR 45 at pp 47 to 48:

 

"The words 'in respect of' have a very wide meaning.  Indeed, they have a chameleon-like quality in that they commonly reflect the context in which they appear.  The nexus between legal liability and  motor  vehicle which their use introduces in s 3(1) is a broad one which is not susceptible of precise definition.  That nexus will not, however, exist unless there be some discernible and rational link between the basis of legal liability and the particular  motor  vehicle.  The point is well made in the judgment of Connolly J (with whom Andrews CJ and Thomas J concurred) in the Full Court of the Supreme Court in the present case ((1988) 5 ANZ Insurance Cases 75,436 at p 75,437):

 

'If the liability of the respondent in this case is to be described as being in respect of the trailer, there must, in my opinion, be more than the mere presence of the trailer at the scene.  As McPherson J observed in Tonga v John Holland (Construction) Pty Ltd (reported as SGIO (Qld) v Workers' Compensation Board (Qld)((1987) 4 ANZ Insurance Cases 74,893, at p 74,895), Stevens v Nudd [1978] QdR 96 and Boath v Central Queensland Meat Export Co Pty Ltd [1986] 1 QdR 139 may be taken as establishing that it is not sufficient, in order to satisfy the requirement that the person entitled to the benefit of the cover be 'legally liable...in respect of such  motor  vehicle', that there be no more than a connexion or relation in time or sequence between the  motor  vehicle and events which in law give rise to the liability.  What is required is that there be a relationship between the  motor  vehicle and the very act or omission which gives rise to that liability.'"

 

He emphasised the requirement that the nexus display some discernible and rational link between the basis of legal liability and the particular motor vehicle.  He drew attention to the observation in the following paragraph of the judgment that there must be more than the mere presence of the relevant vehicle.  The requirement he submitted was for there to be a relationship between the motor vehicle and the very act or omission which gives rise to the liability. 

 

That test was accepted by the respondent which also accepted that determining whether the requisite level of connection was established involved a question of fact and degree in which decided cases were not necessarily determinative. 

 

I have therefore refrained from accepting the kind invitation of counsel for the applicant to consider the matter in the light of reading the substantial number of cases cited to me on the question.  It is essentially one of fact and I do not think then, there being no argument as to the law to be applied, that I shall be greatly assisted by a plethora of single instances.  Indeed, that is more likely to lead to confusion than it is to lead to enlightenment.

 

It is, in my view, significant in this case that the defendant's failure on the agreed facts to provide the necessary barriers and turning area is a failure which has much wider relevance than simply to the truck which hit the plaintiff or even to all of the tip trucks on the site. 

 

There is no suggestion that the access road was used only by tip trucks.  It could be used by any vehicle working on the construction site and it takes little imagination to perceive what sorts of vehicles these would include.  There is, I think, not a listing of the types of vehicles on the site in the statement of agreed facts but it is inconceivable that they would not include vehicles of a type exempted from the operation of the Motor Vehicle Insurance Act. 

 

Barriers would also serve to provide protection from vehicles visiting the site and any other vehicles, including non-motorised vehicles such as bicycles or, as Mr Douglas suggested, wheelbarrows which might happen to be passing by and which might inadvertently impact upon a workman whose attention was concentrated upon a dumpy level.

 

There is in my judgment a differentiation between the tip truck and the liability which the plaintiff seeks to sheet home to the defendant.  The nexus is, in my judgment, insufficiently close to satisfy the requirements of cl 2.  It follows that in my view the first question in relation to that clause should be answered, "No".

 

...

 

HIS HONOUR:  The second question relates to the expression "motor vehicle accident claim" (the word "accident" has been inadvertently omitted).  It seems to me that the claim is one for damages based on a liability for personal injury arising out of a motor vehicle accident and therefore, I would answer the second question, "yes".  I am, however, unpersuaded that it is necessary to answer the question in order to resolve the point raised by the defence and I will hear the parties further on the question of the necessity to answer the second question. 

 

...

 

HIS HONOUR:  Having regard to the submissions of counsel, I have come to the conclusion that it is unnecessary formally to answer the second question.

 

It is common ground that the third question needs to be re-phrased by the deletion of the opening clause, that is the words "If the answer is" down to "yes", and I shall answer it as though those words are deleted.  I will require the solicitors for the applicant to further amend the application in accordance with the rules by deleting those words from it, so that the integrity of the record of the Court is preserved. 

 

It follows from the answer to the first question that the answer to the third question must be "No".  The orders of the Court therefore in relation to paragraph 1 will be:

 

Application allowed.  Order that question (a) be answered "No" insofar as the question refers to cl 2 of the schedule to the Motor Accident Insurance Act 1994.  Otherwise, no answer to question (a). 

 

It is unnecessary to answer question (b).

 

Order that question (c) as amended be answered "No".

 

I note the undertaking to have the amendment effected.

...

 

HIS HONOUR:  It seems to me that the plaintiff has been successful on the application, which constitutes a substantial element of the case, and that the ordinary rule should follow.  I see no reason why the ordinary rule should not be applied.

 

I order that the defendant pay the plaintiff's costs of and incidental to the application to be assessed.

Close

Editorial Notes

  • Published Case Name:

    Taylor v Henry Walker Eltin Contracting Pty Ltd

  • Shortened Case Name:

    Taylor v Henry Walker Eltin Contracting Pty Ltd

  • MNC:

    [2005] QSC 157

  • Court:

    QSC

  • Judge(s):

    Fryberg J

  • Date:

    07 Jun 2005

  • White Star Case:

    Yes

Litigation History

No Litigation History

Appeal Status

No Status