Dunster-Jones v Truebit Pty Ltd
[1999] QDC 221
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- Dunster-Jones v Truebit Pty Ltd[1999] QDC 221
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Dunster-Jones v Truebit Pty Ltd[1999] QDC 221
Dunster-Jones v Truebit Pty Ltd[1999] QDC 221
IN THE DISTRICT COURT HELD AT SOUTHPORT QUEENSLAND | PLAINT NO: 587 of 1997 |
Before HALL D.C.J.
BETWEEN:
MICHAEL DUNSTER-JONES | Plaintiff |
AND:
TRUEBIT PTY LTD | Defendant |
REASONS FOR JUDGMENT - HALL D.C.J.
(Delivered the day of 1999)
This is an application brought by the defendant in the action for a declaration that the plaintiff's claim for damages for personal injuries is bad in law and barred by the operation of the Motor Accident Insurance Act 1994 and for consequential orders. The plaint seeks damages for negligence “and/or breach of an occupier's duty of care”. The defendant operates the Biggera Waters Shopping Centre and as occupier had erected a sign carrying the name “Franklins”. The plaintiff entered the shopping centre car park area, riding a bicycle and attempted to ride beneath that sign. In doing so he failed to see a crossbar connecting the uprights of that sign and collided with it. He claims damages against the defendant particulars of which are as follows:—
- (a)Failing to ensure that the sign's crossbar was at a height so as to avoid a person colliding with it;
- (b)Failing to ensure that the sign's crossbar was clearly visible;
- (c)Failing to ensure that a system of line or edgemarking existed to direct traffic entering the shopping centre away from the sign;
- (d)Failing to ensure that notices and/or warning signs were erected directing tenants to the shopping centre away from the sign;
- (e)In all of the circumstances, failing to take due care for the plaintiff's safety.
The defendant's amended defence raised the issue of law upon which this application is founded. In paragraph 5 of that pleading the defendant adopted the plaintiff's description of the circumstances of the incident described in the plaint and added in paragraph 5(a)(iii) the allegation that “he rode his bicycle in the direction of the crossbar to avoid a motor vehicle then driving into the Biggera Waters Shopping Centre.” The pleading proceeds with the allegation that the incident was a motor vehicle accident within the meaning of the Motor Accident Insurance Act 1994 and that contrary to Section 52 of the Act the plaintiff has not commenced proceedings against the motor vehicle owner or relevant insurer and has commenced the proceedings without giving notice required under Section 37 of the Act.
In an argument which was, at the same time, ingenious on its face but ingenuous when closely examined Mr Holyoak contended that the defendant as occupier of the premises, including the car park area, had a duty of care to all users of the car park to ensure that traffic moved in such a way as to avoid doing harm to other customers of the defendant. If the plaintiff's collision with the crossbar of the “Franklins” sign was caused by the presence of the motor vehicle which the plaintiff endeavoured to avoid then the liability of the driver (and insurer) of that motor vehicle is shared by the defendant as occupier for its failure to control the conduct of that motor vehicle driver. He referred to Section 5(i)(b) of the Motor Accident Insurance Act and to numerous decisions of various courts of authority in Australia involving the interpretation of the words “in respect of” contained in that statutory provision. He relied in particular upon Suncorp Insurance Finance v. Workers' Compensation Board of Queensland (1990) 1 Qd. R. 185 and Curtain v. F.A.I. (1995) 1 Qd. R. 142 and argued by analogy that if the defendant in this action is liable to the plaintiff, that liability is based on inviting the plaintiff cyclist and the identified vehicle into the car park. It was foreseeable that a cyclist or pedestrian may as a result of the inadvertent or even negligent acts or omissions of another cyclist, pedestrian or motorist, be diverted off the carriageway into the crossbar of the sign. Whilst it might be said that any liability which the defendant had might attach as occupier because of the placement of the sign and its “configuration”, such liability might also he “in respect or” the motor vehicle which the defendant had invited onto its premises in proximity to the sign which may foreseeably cause another to come into contact with the sign without giving appropriate warnings or taking appropriate safeguards with respect to the sign. That is the legal basis of this application.
As I said earlier that argument is quite ingenious as an academic exercise in legal reasoning but in my view it is misconceived. In Technical Products Pty Ltd v. State Government Insurance Office (Queensland) (1989) 167 CLR 45 the High Court construed the term “in respect of” a motor vehicle as requiring some discernible and rational link between the basis of legal liability and the particular motor vehicle and the act or omission giving rise to liability. The same concept was expressed again in Tonga v. John Holland (Construction) Pty Ltd (1988) 2 Qd. R. 587, McPherson J (as he then was) said of the two earlier Queensland decisions of Stevens v. Nudd (1978) Qd.R. 96 and Boath v. Central Queensland Meat Export Co Pty Ltd (1986) 1 Qd. R. 139:—
“Those two cases may be taken as establishing that it is not sufficient, in order to satisfy the requirement of 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 connection 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. The conception is in some respects a difficult one to apply, but in the two decisions mentioned it was justified by the requirement in Section 3(1) (of the Motor Vehicles Insurance Act 1936) that the legal liability be “in respect of” the motor vehicle. Thus, in Stevens v. Nudd the negligence imposing liability was held to be confined to controlling the dog on the footpath and not to extend to the motor cyclist on the road; and in Boath v. COMC (sic) it was held to be confined to the state or condition of the bridge and not to involve the vehicle that drove on it.”
The only evidence before me as to the involvement of the motor vehicle is that provided by the plaintiff in answers to interrogatories. He was minutely questioned on the movement of his bicycle and the subject motor vehicle and said consistently and persistently that he was aware of the vehicle, he had full notice of the intention of the driver to turn into the car park behind him, the vehicle was not moving at any significant speed although its speed was greater than that of his bicycle and says that he turned away from his chosen path because of the vehicle's presence. He did not suggest in any way any degree of negligence or want of care of any kind on the part of the driver of that vehicle. In terms of the Act the plaintiff does not rely in any respect on a “wrongful act or omission in respect of the motor vehicle” to which he referred in his answers to interrogatories. Accordingly I am of the view that the Motor Accident Insurance Act 1994 does not apply in any way in the circumstances of this action and the defendant's application is dismissed. I order the defendant pay the plaintiff's costs of and incidental to this application to be assessed.