Vonhoff v Jondaryan Shire Council
[2001] QCA 439
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- Unreported Judgment
- Appeal Determined (QCA)
- Vonhoff v Jondaryan Shire Council[2001] QCA 439
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Vonhoff v Jondaryan Shire Council[2001] QCA 439
Vonhoff v Jondaryan Shire Council[2001] QCA 439
SUPREME COURT OF QUEENSLAND
CITATION: | Vonhoff v Jondaryan Shire Council & Anor [2001] QCA 439 |
PARTIES: | ANTHONY EDWARD VONHOFF (plaintiff/respondent) v JONDARYAN SHIRE COUNCIL (first defendant/first applicant) NOMINAL DEFENDANT (second defendant/second applicant) |
FILE NO/S: | Appeal No 5702 of 2001 DC No 46 of 2000 |
DIVISION: | Court of Appeal |
PROCEEDING: | Miscellaneous Application – Civil |
ORIGINATING COURT: | District Court at Toowoomba |
DELIVERED ON: | 16 October 2001 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 17 August 2001 |
JUDGES: | McMurdo P, Williams JA, Holmes J Separate reasons for judgment of each member of the Court, McMurdo P and Williams JA concurring as to the order made, Holmes J dissenting. |
ORDER: |
that the question “As at the 13th May 1997, was the Skid Steer Loader referred to in paragraph 2(d) of the Statement of Claim a ‘motor vehicle’ as that term is defined in the Motor Accident Insurance Act 1994 (Qld)?’ be answered ‘No’.
|
CATCHWORDS: | TRAFFIC LAW – PUBLIC VEHICLES – QUEENSLAND – REGULATIONS AND BY-LAWS – whether a ‘skid steer loader’ (a bobcat) owned by the Shire Council is a ‘motor vehicle’ for the purposes of the Motor Accident Insurance Act 1994 (Qld) – whether the bobcat was equipment being used for ‘the construction of works for, or maintenance of, road transport infrastructure’ - where bobcat fixing a broken water pipe which was under the road and would have damaged the road – where element of uncertainty in the law INSURANCE – MOTOR VEHICLES - OTHER CASES – QUEENSLAND – where identity of insurer liable to indemnify the first appellant dependant upon determining whether the bobcat was a motor vehicle Motor Accident Insurance Act 1994 (Qld), s 4 Motor Vehicles Control Act 1975 (Qld) Traffic Act 1949 (Qld), s 9 Traffic Regulations 1962 (Qld), r 4 Transport Infrastructure Act 1994 (Qld), s 9 Transport Infrastructure (Roads) Act 1991 (Qld), s 22 Transport Infrastructure (Roads) Regulation 1991 (Qld) (superseded), s 2, s 12, s 44(1) |
COUNSEL: | S C Williams QC with S A McLean for the applicants K D Dorney QC with J B Rolls for the respondent |
SOLICITORS: | Wonderley & Hall for the applicants Shine Roche McGowan for the respondent |
- McMURDO P: I agree with the reasons for judgment of Williams JA and add only the following brief comments.
- The question whether the bobcat was "equipment used for … maintenance of, road transport infrastructure" under s 2 Transport Infrastructure (Roads) Regulation 1991 is not straightforward. Holmes J and the learned trial judge have given persuasive reasons for answering that question in the negative. The respondent was an employee responsible for maintaining the appellant's water supply and sewerage. He noticed water coming from a road intersection and thought it was a leaking water pipe under the road.[1] The respondent was injured by the bobcat which was excavating the road to locate the source of the leak. The leak needed to be repaired for the maintenance of both the water supply and the road. The maintenance of the road was not merely incidental to the maintenance of the water supply. On these facts the bobcat was "equipment used for … maintenance of road transport infrastructure".
- I add my support to the views of Williams JA and Holmes J that the uncertainty in the interrelationship of the provisions of the Motor Accident Insurance Act1994 (Qld) and the Transport Infrastructure (Roads) Regulation 1991 should be clarified by the legislature.
- I agree with the orders proposed by Williams JA.
- WILLIAMS JA: The appellants, Jondaryan Shire Council and Nominal Defendant, the defendants in the action, seek leave to appeal against a decision of McGill DCJ on a preliminary question which arose in the action brought by the respondent, Vonhoff, against the appellants. An earlier order of a District Court judge had directed that the following question be determined as a preliminary issue:
"As at the 13th May 1997, was the skid steer loader referred to in paragraph 2(d) of the Statement of Claim a 'motor vehicle' as that term is defined in the Motor Accident Insurance Act 1994?"
For reasons which he published, McGill DCJ answered that question "Yes".
- The case for the appellants is essentially that the decision of McGill DCJ was wrong in law. Though the matters in issue are not easy to resolve they are within small compass. In consequence the Court invited the parties to treat the application for leave to appeal as the hearing of the appeal; the hearing proceeded on that basis.
- At all material times the respondent was employed by the first appellant, Jondaryan Shire Council, as part of its workforce responsible for maintaining the water supply and sewerage facilities in the Shire. On 13 May 1997, while he was driving home from work, he noticed water coming from the ground at a road intersection in Oakey. It appeared to him there was a water leak from under the footpath. In consequence he made arrangements for a Mustang model 940 skid steer loader fitted with a Dirt King backhoe attachment to come to the intersection from the first appellant's depot. That equipment is commonly referred to as a "bobcat", and I will so refer to it. The operator of the bobcat (another employee of the first appellant) excavated a hole, principally under the footpath, to a point where the leaking water pipe was exposed. It is sufficient for present purposes to say that thereafter the respondent, while standing in the excavation, received personal injuries allegedly in consequence of the operation of the bobcat. In the action the respondent has sued the appellants for damages for personal injury allegedly sustained as a result of the negligent operation of the bobcat.
- The identity of the insurer liable to indemnify the first appellant is dependent upon the determination of the question whether or not the bobcat was a motor vehicle as that term is defined in the Motor Accident Insurance Act 1994 ("MAI Act"). The definition of "motor vehicle" therein (s 4) is as follows:
"'Motor vehicle' means a vehicle for which registration is required under the Transport Infrastructure (Roads) Regulation 1991 or the Motor Vehicles Control Act 1975, and includes a trailer".
It was agreed that the provisions of the Motor Vehicles Control Act 1975 were irrelevant for present purposes.
- Section 12 of the Transport Infrastructure (Roads) Regulation 1991 ("TIR Reg") is in the following terms:
"A person must not use, or permit to be used, on a road, a vehicle (being a motor vehicle or trailer) that is not registered under this regulation, unless the use of the vehicle is authorised –
(aa) under s 16(2); or
- under the law of another State, a Territory, the Commonwealth or a foreign country, and the person complies with Division 3; or
- by a limited use permit or limited use plate, and the person complies with Division 4; or
- by a dealer's plate, and the person complies with Division 5."
It was agreed that none of the specified exceptions applied here. Importantly for present purposes in that Regulation (s 2) "vehicle" is defined as not including:
"(a)an agricultural implement; or
- equipment used for the construction of works for, or maintenance of, road transport infrastructure."
The real question is therefore whether the bobcat was "equipment used for the construction of works for, or maintenance of, road transport infrastructure". That raises issues of mixed fact and law. The answer depends upon the proper construction of the statutory definition and its application to the particular factual situation.
- McGill DCJ made the following findings with respect to the bobcat:
". . . the effect of the evidence is that what this piece of equipment was doing at the relevant time was what it usually does, or most commonly does, that is, work on water mains in the Shire. The evidence was that these mains are constructed within road reserves, usually under the footpath but sometimes under the carriageway, so that about 95% of the work done by this piece of equipment, when working on matters associated with water supply, would involve work on roads. The defendant's evidence was that during the 1996‑97 financial year just over 78% of the hours worked by this particular piece of equipment involved work on water supply, so that is the dominant or principal or usual use of this piece of equipment. The plaintiff's evidence was less precise, but he said that the equipment was usually used for the water supply and sewerage section to which he was attached. In these circumstances, it does not matter whether the test is what the equipment was actually being used for at the relevant time, or what it was predominantly or usually used for."
That amounts to a finding that the bobcat was equipment which was usually used for work on roads, and was used for work on a road at the material time. The next question is whether or not that was an activity within the expression "the construction of works for, or maintenance of, road transport infrastructure".
- The Transport Infrastructure (Roads) Act 1991 (TIR Act"), as amended at the material time, is an Act which forms part of a series of Acts to be read with the Transport Infrastructure Act 1994. Chapter 5 of that latter Act is entitled "Road Transport Infrastructure". Section 22 provides some definitions for Chapter 5; of particular relevance is the definition of "construction" which is in these terms:
". . . in relation to road transport infrastructure, includes –
- initial construction; and
- improvement of the standard; and
- realignment; and
- widening;
that involves the development of road transport infrastructure".
- Schedule 3 to the 1994 Act also contains a number of definitions which are relevant for present purposes. "Maintenance" for purposes of Chapter 5 is defined as including:
"(a)rehabilitation; and
- replacement; and
- repair; and
- recurrent servicing; and
- preventative and remedial action; and
- removal; and
- alteration; and
- maintaining systems and services for road transport infrastructure".
In that Schedule "road transport infrastructure" is defined as including "transport infrastructure relating to roads" and "transport infrastructure" is in turn defined as including road transport infrastructure. The other definition of some significance for present purposes is that of "road" which is defined as meaning:
"(a) an area of land dedicated to public use as a road; or
(b) an area that is open to or used by the public and is developed for, or has as one of its main uses, the driving or riding of motor vehicles; or
(c) a bridge, culvert, ferry, ford, tunnel or viaduct; or
(d) a pedestrian or bicycle path; or
(e) a part of an area, bridge, culvert, ferry, ford, tunnel, viaduct or path mentioned in paragraphs (a) to (d)".
- There is no doubt, as McGill DCJ noted, that the use of the expression "road transport infrastructure" rather than the word "roads" was to "ensure that other things associated with and existing because of the roads, such as bridges, roads drainage works, street lighting, and other related matters would be included". His Honour went on to state that a water supply "provided to the road or in connection with the use of the road" would be caught by the expression "road transport infrastructure", but he contrasted that with a "water main [which] was simply the ordinary water supply main for some or all of Oakey, and the involvement of the road was fortuitous". His reasoning went on:
"The water main was buried underneath the footpath because that is a convenient place to put a water main, not because it is a necessary or ordinary part of a road. In my opinion, doing work on a water main is not doing work on road transport infrastructure, even if the water main happens to be buried under a road so that the road has to be dug up in order to get to the water main, and presumably made good afterwards.
It was submitted on behalf of the defendants that doing work on the water main necessarily involved doing work on the road, because the road had to be dug up (or opened) in order to get access to the pipe, and then remade above the filled in trench after the pipe had been repaired. That may be so, but equipment being used in such circumstances was not being used for the construction or the maintenance of the road or some related facility: it was being used for the maintenance of the pipe. This machine was not repairing the road, it was repairing the water main. That the road was involved was incidental".
The fundamental question is whether or not the reasoning in the passage just quoted from the judgment is correct. The term "motor vehicle" was defined in the Motor Vehicles Insurance Act 1936, the forerunner of the MAI Act, as excluding "machinery especially designed for road making"; that carried over to the then legislative provisions requiring a vehicle to be registered. That focused on the machine itself, and in deciding whether or not it was a motor vehicle, its design, rather than its use, was determinative. The current statutory provisions, with which the Court is concerned in this case, focus on the use of the machine (equipment) rather than its design. The equipment in question here had a backhoe attachment and in consequence it could readily be described as a backhoe. It is clear from s 5(3) of the MAI Act that the Act applies to personal injury caused by through or in connection with a backhoe where the accident causing the injury happens on a road. The sub-section also catches other equipment which could be used for road construction or maintenance purposes, for example, bulldozers. That provision must be read in harmony with the exclusion of "equipment used for the construction of works for, or maintenance of, road transport infrastructure" from the definition of "motor vehicle" for purposes of the MAI Act.
- The reason for the two propositions is fairly obvious. If a bobcat is being driven along a road for the purpose of, for example, getting from A to B, it will be classed as a motor vehicle. It would have to be registered and carry third party insurance. If an accident occurred occasioning personal injury the third party insurer would be liable to indemnify the driver. If it was uninsured then the Nominal Defendant would be the relevant insurer. But if the bobcat was being used for the maintenance of road transport infrastructure it would not have to be registered and the Nominal Defendant would not be liable to indemnify the owner or operator with respect to any personal injury occasioned whilst the bobcat was being used for that purpose.
- Against that background one must return to the findings of fact made by McGill DCJ and consider the use to which this equipment was being put at the relevant time.
- Those findings establish that the work being done was necessary for the maintenance of the road. If the water pipe which was under the road (the footpath was clearly within the area of land dedicated to public use as a road) had been allowed to continue leaking the road would have eventually subsided or been eroded away. The work involved not merely repairing the leaking pipe, but was work necessary to maintain the road in a trafficable condition. In my view the work the bobcat was performing at the material time clearly comes within the definition of "maintenance" quoted above. That definition applies to the use of the term "maintenance" in the expression "used for . . . maintenance of road transport infrastructure" in s 2 of TIR Reg and that means in my view that at the material time the equipment in question was being used for the maintenance of road transport infrastructure.
- Such a conclusion is in keeping with the finding that "about 90% of the work done by this piece of equipment . . . would involve work on roads". There may well be difficulties where a particular piece of equipment is alternating frequently between work involving maintenance of road transport infrastructure and some other use; but the resolution of that problem can be left to another day.
- The different conclusions reached by McGill DCJ in his careful judgment, and myself, indicate that there is an element of uncertainty in this area of the law which ought be addressed by the legislature. It is important that all owners of equipment, machinery or vehicles know whether or not that item has to be registered and carry third party insurance. The definitions as they currently stand are cumbersome, difficult to reconcile with each other, and probably unintelligible to a lay person. Appropriate amendments to the legislation in question should result in the position being made clearer for the owners and operators of vehicles and machinery in this State.
- It would follow that in my view the question for determination by the Court should be answered "No".
- Before McGill DCJ the appellants also relied on an alternative submission which, if accepted, would have resulted in the question being answered "No". The appellants also failed at first instance on that argument and renewed it on the hearing before this Court. In the circumstances it is desirable that this Court deal with the point.
- Section 44(1) of the TIR Reg is in these terms:
"When a vehicle is used on a road in accordance with the prior approval of the Chief Executive, the use of the vehicle does not contravene a provision of section . . . 12 . . .".
In other words where such an approval is held the vehicle need not be registered. Subsequent subsections provide that the approval must be in writing, must specify the vehicle, specifying the roads on which it may be used, must specify the period of use on the roads, and must specify such other terms and conditions as the Chief Executive determines.
- It was contended by the appellants that at the material time the bobcat was being used on a road in accordance with such an approval. The document relied on was that which appears as Exhibit A to the Affidavit of J P Cross before this Court. That document is entitled "Period Permit" and bears the number 93124. It purports to relate to vehicles of "excess dimension" or a "specially constructed vehicle". It refers to the Traffic Act and Regulations thereunder. It is issued to the Jondaryan Shire Council and is stated to be valid until 3 December 1997. It was issued on 4 December 1996 under the hand of the police officer who was Superintendent of Traffic at Oakey. Attached to the permit is a sheet containing the description of a number of vehicles. One of those vehicles is described as "420 Skid Steer Loader – Mustang 940 serial number 4465836 engine number 17090"; it is agreed that that is a reference to the bobcat in question.
- Finally, it should be noted that at the foot of the document the following appears in small print:
"NB – This permit does not exempt the holder thereof from obtaining any permit or other authority under and/or otherwise complying with the provisions of any other law, for instance the State Transport Act and Regulations or the Main Roads Act and Regulations".
It should be noted that the TIR Reg superseded the Main Roads Regulations; it was those latter regulations that previously provided for vehicle registration. For reasons which he gave, McGill DCJ concluded that that permit did not constitute an approval under s 44. I agree with all that he said in that regard.
- Mr Williams QC, who appeared for the appellants, valiantly tried to demonstrate that a police office, in particular the Superintendent of Traffic at Oakey, was a delegate of the "Chief Executive" for purposes of granting an approval under s 44. I am prepared to accept that the Chief Executive for purposes of s 44 is the Chief Executive of Queensland Transport. But there is nothing to indicate any delegation by that Chief Executive to all or any member of the police service. Mr Williams sought to rely on the definition of "authorised officer" found in s 9 of the Traffic Act 1949 which provides that an "authorised officer" means relevantly "a police officer". He sought to make that provision apply by relying on s 9 of the TIR Act 1991 which provides:
"(1) The Chief Executive may authorise an officer or employee, or the holder of any office specified by the Chief Executive, to exercise all or any of the powers conferred by this Act or any other Act on an authorised officer.
(2) A reference in this Act to an authorised officer is a reference to –
- an officer or employee authorised by the Chief Executive under subsection (1) . . .".
I find that provision unintelligible. It seems to be saying that the Chief Executive may authorise someone to exercise a power conferred on that person by the Act. If the power is conferred by the Act, I cannot see how an authorisation from the Chief Executive adds anything. But further, I cannot see that the use of the expression "authorised officer" in that section picks up anyone who is an "authorised officer" for purposes of the Traffic Act 1949.
- Further, as Mr Dorney QC for the respondent contended, the document appears to be an "excess dimension vehicle permit" within the definition of such a permit in Regulation 4 of the Traffic Regulations 1962. Provisions relating to such permits are also found in Regulations 184 to 186.
- In all the circumstances I am not satisfied that the appellants have established that a permit pursuant to s 44 of the TIR Reg existed with respect to the bobcat at the material time.
- The orders of the Court should therefore be:
- Leave to appeal granted;
- Appeal allowed;
- Set aside the orders of McGill DCJ of 29 May 2001 and in lieu thereof order:
- that the question "As at the 13th May 1997, was the Skid Steer Loader referred to in paragraph 2(d) of the Statement of Claim a 'motor vehicle' as that term is defined in the Motor Accident Insurance Act 1994?" be answered "No";
- that the respondent pay the appellants' costs to be assessed of the hearing in the District Court and of this appeal.
- HOLMES J: I have had the advantage of reading the reasons for judgment of Williams JA. I agree with his Honour’s conclusion that the appellants failed to show that any permit under s 44 of the Transport Infrastructure (Roads) Regulation 1991 existed in respect of the bobcat.
- However, I am unable to agree with his Honour’s conclusion that the findings of McGill DCJ in relation to the nature of the work being done by the bobcat should have led to a conclusion that it was “used for … maintenance of road transport infrastructure”. Had the matter been before me at first instance I would have taken a similar view to that of McGill DCJ; that is, that use of the bobcat to locate the water main and carry out any necessary reinstatement of the road after the repair of the main did not constitute maintenance of road traffic infrastructure. While it is quite probable that the leak from the water main, if allowed to continue unabated, would have a deleterious affect on the condition of the road, prevention of that result was not the purpose of the work being done. It was, as the learned judge at first instance said, incidental. It seems to me that it was at the least open for McGill DCJ to reach the conclusion he did on the findings of fact he had made; and as I have indicated I would, in any event, have reached a similar result.
- My departure at this point from agreement with the reasons of Williams JA serves, I think, to illustrate the observation he has made in his judgment as to the uncertainty in this area of the law. The exclusion, in the Transport Infrastructure (Roads) Regulation from the definition of “vehicle” of “equipment used for … maintenance of road transport infrastructure” is capable of referring to equipment at some time used; predominantly used; or on the occasion in question used for that purpose. There is, thus, scope for an even greater variety of differing views than the present case demonstrates. Since the existence of the requirement for registration may depend on whether the exclusionary term has effect, that is clearly an unsatisfactory state of affairs.
- I would give leave to appeal and dismiss the appeal.
Footnotes
[1] The wide definition of "road" in Sch 3 Transport Infrastructure Act 1994 includes a footpath.