Evans v Transit Australia Pty Ltd
[2000] QDC 39
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- Unreported Judgment
- Appeal Determined - Special Leave Refused (PC/HCA)
- Evans v Transit Australia Pty Ltd[2000] QDC 39
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Evans v Transit Australia Pty Ltd[2000] QDC 39
Evans v Transit Australia Pty Ltd[2000] QDC 39
DISTRICT COURT OF QUEENSLAND
PARTIES: | BETTY MAY EVANS (Plaintiff) v TRANSIT AUSTRALIA PTY LTD (First Defendant) and SUNCORP GENERAL INSURANCE LTD (Second Defendant) |
FILE NO/S: | Plaint No. D78 of 1998 |
DELIVERED ON: | 3 April 2000 |
DELIVERED AT: | Maroochydore |
HEARING DATE: | 7 and 8 March 2000 |
JUDGE: | K S Dodds DCJ |
ORDER: | Judgment for the plaintiff against the first defendant for $70,000. |
CATCHWORDS: | WORKERS’ COMPENSATION – MOTOR VEHICLE INSURANCE – pl/employee sustained back injury whilst driving def/employer’s buses with a defective seat – wh licensed insurer of buses liable to indemnify employer – wh employer discharged its statutory duty to ensure workplace safety |
COUNSEL: | Mr M Grant-Taylor SC for the plaintiff Mr R Douglas SC and Mr R Myers for the first defendant Mr P Ambrose for the second defendant |
SOLICITORS: | Boyce Garrick Lawyers for the plaintiff McInnes Wilson for the first defendant Quinlan Millar and Treston for the second defendant |
- [1]This was an action for damages for personal injury allegedly suffered by the plaintiff during the course of her employment by the first defendant. The quantum of the plaintiff’s damages has been agreed by all parties.
- [2]The plaintiff was employed by the first defendant as a bus driver commencing 8 January 1996 until 23 August 1996. She said in evidence that over the period of her employment she began to experience discomfort in her back and neck coincident with driving particular Mercedes Benz buses. Over time the pain increased in frequency and intensity. It was associated with driving these particular buses. The particular buses were ones in which the cushion of the driver’s seat had lost its resistance to compression principally, on the left-hand side and towards the front (the defective seat). To drive one of these buses, a strained posture had to be maintained to counteract a tendency to tip and slip to the left. Driving shifts could extend over a number of hours.
- [3]There was evidence from a number of bus drivers employed by the first defendant that driving these buses caused back pain over the duration of a shift. The only way relief was obtained was when able to leave the bus and walk and stretch.
- [4]The other drivers who gave evidence in the plaintiff’s case of back pain as a result of driving these buses were Clarence Hauff, Eric Dawson, Maurice Knight, James Pizzey, Alan O'Brien, Darren Evans, Robert Dare, Noel Mason; some were still employed by the defendant. Another person who drove the Mercedes as a bus driver over part of the period the plaintiff was employed (Ian MacKinnon) gave evidence in the first defendant’s case. His evidence was that he never experienced any problem with back pain due to seat cushions losing resistance to compression on the left-hand side. I note that he only worked as a driver from December 1995 for about six months. He then moved to the first defendant’s workshop where he worked as a trades assistant.
- [5]There was evidence that verbal complaints were made to persons either in a position of authority with the first defendant or whose specific job it was to address maintenance problems with buses. Written complaints were made about the seats in logbooks provided in buses for that purpose. Representatives of the seat manufacturers attended on one occasion. Spacers were inserted underneath the seats to raise the left-hand side of the seat. The seat manufacturer provided some more seat cushions which over time were fitted to buses when a seat cushion had partially collapsed.
- [6]It is apparent from the evidence that on one occasion it can be demonstrated that a seat cushion was replaced within a couple of days of the plaintiff making a written complaint about it. It is also apparent that on other occasions complaints continued to be made for a considerable period of time about the driver’s seat in a particular bus and it is not shown that the first defendant took action or at least reasonably prompt action to address the complaint. The evidence of several of the drivers who gave evidence was that the seat cushion was only replaced when its collapse had progressed to a point where it was severe. One of the drivers who gave evidence said replacement of a cushion only occurred where it had reached a stage where drivers were refusing to drive the bus.
- [7]The plaintiff pleaded both a breach by the first defendant of its common law duty of care and breach of statutory duty. The latter plea was that the first defendant had an obligation pursuant to section 28 of the Workplace Health and Safety Act 1995 (the Act) to ensure her workplace health and safety. Counsel for the plaintiff submitted that the decision of the Court of Appeal Queensland in Schiliro v. Peppercorn Child Care Centres Pty Ltd [2000] QCA 18 removed any doubt that may have existed that a breach of section 28 of the Act provided a civil cause of action to an employee.
- [8]Section 28(1) of the Act provides that an employer has an obligation to ensure the workplace health and safety of each of the employer’s workers at work.
- [9]Section 22 of the Act provides that workplace health and safety is ensured when persons are free from inter alia injury or risk of injury caused or created by any workplace or workplace activities. It further provides that workplace health and safety can generally be managed by:
- (a)identifying hazards;
- (b)assessing risks that may result because of the hazards;
- (c)deciding on control measures to prevent or minimise the level of the risks;
- (d)implementing control measures;
- (e)monitoring and reviewing the effectiveness of the measures.
Section 27(3) of the Act provides that a person discharges the workplace health and safety obligation for exposure to a risk only if the person takes reasonable precautions and exercises proper diligence to ensure the obligation is discharged.
- [10]Section 37 of the Act provides that it is a defence in a proceeding against a person for a contravention of an obligation imposed on the person (under s. 28) for the person to prove…
…
- (c)…that the person chose any appropriate way and took reasonable precautions and exercised proper diligence to prevent the contravention.
- [11]Once the plaintiff establishes a causal link between her employment and the injuries she suffered, the defendant must show that it took reasonable precautions and exercised proper diligence to ensure the plaintiff’s workplace health and safety. It may do that by for instance showing that it identified the cause of back pain in the plaintiff and others of its drivers, that it assessed the risk to the workplace health and safety of drivers from that cause, that it decided on appropriate measures to prevent or minimise the level of risk and that it implemented those measures and monitored and reviewed their effectiveness. Counsel for the plaintiff submitted that before the first defendant could set out to show that it took reasonable precautions and exercised proper diligence to discharge its obligation to ensure the workplace health and safety of the plaintiff, it must expressly plead as much. He referred to Bowes v. Sedgefield Council (1981) ICR 235, Johnston v. Caddies Wainwright Ltd (1993) ICR 407, Kingshott v. Goodyear Tyre and Rubber Co Australia Ltd (No.2) (1987) 8 NSWLR 707 per Kirby P at 717D-E, Larner v. British Steel Plc (1993) 4 AllER 102 per Hirst LJ at 108e-108j and Peter Gibson J at 111b, Mount Isa Mines Ltd v. Peachy (unreported CA 3072/98, 01/12/98). Those cases support the submission.
- [12]In its amended defence the first defendant admitted it had the obligation as employer of the plaintiff to ensure the workplace health and safety of the plaintiff at work pursuant to section 28(1) of the Act but denied in point of law that the statutory obligation referred to therein conferred a private right of action upon the plaintiff. It denied that at any time the seat of any bus was broken or defective such that the seats had collapsed or were tilted at an angle so that in occupying the seats the occupier was forced to adopt a posture which accommodated the tilt. It said this was because:
(c)…
- (i)the seat of any bus from time to time would suffer some erosion or softening of padding therein on the left hand side thereof;
- (ii)such (erosion or softening of the padding on the left-hand side of the seat) was the subject of timeous maintenance and repair by servants or agents of the first defendant.
See paragraph 9(b) and (c) of the amended Entry of Appearance and Defence.
- [13]Having denied in point of law that section 28(1) of the Act conferred a private right of action on the plaintiff, the first defendant admitted that it owed the plaintiff a duty to exercise reasonable care to avoid risks to the health and safety of the plaintiff and further that it was an implied term or condition of the contract of employment between the plaintiff and the first defendant. It did not plead that it had and why it said that it had discharged its obligation imposed by section 28(1) of the Act. Rather in effect it denied any such obligation was material to a claim by the plaintiff for damages. It simply said that any erosion or softening of the padding on the seats was the subject of timeous maintenance and repair. That however was in the context of the duty it admitted it owed to the plaintiff. It was not explicit or implicit in the amended defence that the first defendant contended it had discharged the obligation cast upon it pursuant to section 28(1) of the Act for the purposes of the plaintiff’s action. In the circumstances, I think the plaintiff's submission is correct. The first defendant cannot discharge its onus of proof.
- [14]I intend however to examine whether the evidence would in any event justify a finding that the first defendant has discharged the obligation cast upon it by the Act.
- [15]Was the plaintiff’s condition, which is the subject of agreed damages caused by driving buses with seats which required a driver to adopt a posture to counteract a lean or tendency to slip to the left?
- [16]The evidence touching this question is that of the plaintiff who described that the onset of back pain occurred in about March 1996 and was associated with driving buses with a driver’s seat which when the driver was seated in it in a normal way tended to cause the driver to tilt to his or her left. The pain increased in frequency and intensity until eventually she was experiencing pain when driving a bus with a seat that did not do this. She had had some years of prior experience driving buses and had had no prior back pain.
- [17]The onset of the plaintiff’s back pain from some other cause could of course have been merely coincidental with driving buses with the defective seat. A number of other drivers however, also gave evidence of the coincidence of back pain with driving buses with the defective seat. One person who drove the Mercedes buses up until about June 1996 (MacKinnon) gave evidence he experienced no problem with the seats. Apparently in all there were about 100 drivers employed by the defendant.
- [18]Apart from the evidence of the bus drivers who entered the witness box, reports of faulty driver’s seats entered in bus logbooks were in evidence. They show with respect to some buses (004, 008) complaints about the driver’s seat leaning to the left being made in early June and early May respectively (see Exhibits 14 and 19). Answers to interrogatories show that with respect to another bus (006) similar complaints were made as early as 23 May 1996 and with respect to another bus (002), as early as 30 June 1996 (see Exhibits 23 and 27).
- [19]Other evidence which touched upon the issue of causation was that of Dr Coyle and Dr Grigg. Dr Coyle is a principal of a company holding itself out as occupational health and safety consultants and with experience and qualifications in ergonomics. On the assumption the plaintiff sustained injury to her back whilst driving the Mercedes buses with the padding of the driver’s seat collapsed on the left, he finally opined the most likely causative factor was sustained low levels of static muscle loading and scoliosis or tilting of the spine as a result of attempting to counteract the tendency to lean to the left associated with shearing forces resulting from some movement of the spine during the driving process.
- [20]Dr Grigg, a principal of a firm “Forensic Engineering Consulting” and a mechanical engineer with extensive experience agreed that if a half dozen or so drivers who drove buses with the defective seat complained of back pain associated with driving the buses and they did not have other activities which simultaneously may have created the problem, then it would be hard to refute the probability that the defective drivers seat contributed to the back pain.
- [21]There was nothing in the evidence justifying non-acceptance of the evidence of the plaintiff and other drivers about the correlation of back pain with driving buses with the defective seat. I find that driving Mercedes buses with a defective driver’s seat caused the onset of back pain in the plaintiff which worsened over time as she continued to drive these buses from time to time. I accept her evidence that eventually she was experiencing back pain when driving a bus without a defective seat, something that had not happened before she commenced driving the buses with a defective driver’s seat. On the evidence I have I find that the plaintiff’s back condition the subject of agreed damages was caused by driving Mercedes buses with a defective driver’s seat.
- [22]Has the first defendant shown that it took reasonable precautions and exercised proper diligence to ensure the plaintiff’s workplace health and safety?
- [23]The first defendant called evidence from James Jones, a diesel mechanic and a member of the first defendant’s mechanical maintenance staff until he retired in June 1999; from Stanley Sparks who was the depot controller from December 1995 to February 1998; from Kerry O'Brien the operations manager of the first defendant for the Sunshine Coast; from Ian MacKinnon the driver I have already mentioned and from Dr Grigg.
- [24]The evidence established that complaints about the seats were received from some drivers. I accept they were made both orally and in logbooks. An examination of seats was made and measurement of levels undertaken. According to Jones, little of significance was revealed. There was evidence a representative of the manufacturer of the seats attended on one occasion. Inquiry of other drivers was made. According to Jones some shims were put under seats to lift them on the left hand side and the manufacturer of the seats provided some seat cushions which were used to replace cushions about which complaints were made.
- [25]I accept the evidence in the case that the type of seat mechanism was one of the best commercially available. Nonetheless I accept the evidence of the driver’s who gave evidence in the plaintiff’s case that over time there was a noticeable lowering of the driver’s seat on the front left hand side which had the effect on posture earlier described. The lowering was probably caused by drivers operating the ticketing machine putting additional stress on that part of the seat cushion.
- [26]It is I think of significance in answering the question posed, that the logbook entries in evidence and the answers to interrogatories, tend to confirm the oral evidence of the plaintiff and some of the drivers who gave evidence in her case that despite repeated complaints, little was effectively done to address the problem for quite a long time. For instance: according to logbook sheets in evidence, complaints were made about bus 004 on 4 June 1996, 21 June 1996, 22 June 1996 and 10 July 1996. The first defendant cannot say what action was taken to address those complaints. It would appear though that nothing of significance was done for over a month at least. According to the log book sheets in evidence, complaint was made regarding bus 008 on 4 May 1996, 23 May 1996, 1 June 1996, 16 June 1996, 17 July 1996, 18 July 1996 and 27 July 1996. The only evidence from the first defendant about what was done was that on 24 August 1996 a new seat squab (probably more correctly called a cushion) was fitted and two millimetres of shims were placed under the left hand side of the seat. According to logbook sheets in evidence, complaint was made regarding bus 002 on 30 June 1996, 5 July 1996 and 24 July 1996. On 24 July 1996, apparently a new seat was fitted. Admittedly, there was evidence that within two days of the plaintiff complaining about the seat of bus 007 a job sheet indicates “remove seat squab and fit new seat and replace”.
- [27]There was no evidence of any particular substance addressing the taking of reasonable precautions and exercising proper diligence to ensure the defendant’s workplace health and safety obligation was discharged. The evidence of log sheets I have referred to, tends to support the evidence of some of the drivers who gave evidence that nothing was done despite reports of a defective seat until the seat had deteriorated to a very significant degree.
- [28]On the evidence before me, I find the first defendant has not shown that it took reasonable precautions and exercised proper diligence to ensure the workplace health and safety of the plaintiff.
- [29]The second defendant was the licensed insurer of the material buses. It contends it is not liable to indemnify the first defendant because the Motor Accident Insurance Act 1994 (the MAI Act) does not apply to the fact situation here. If it does not apply, then Workcover will in all probability indemnify the first defendant: Section 11 Workcover Queensland Act 1996.
- [30]The second defendant conceded that if the seats of the buses were defective then personal injury was caused in connection with a motor vehicle and was caused by a wrongful act in respect of the motor vehicle. However it contended that the personal injury was not caused as a result of any of the circumstances provided, in particular that it was not as a result of the driving of the bus or buses. It submitted rather that the injury was caused by a defect in the motor vehicle namely the seats but that was not a material defect for the purposes of Section 5. It submitted that there must be more than just a temporal connection between the injury and the driving of the motor vehicle; that the driving must be the proximate cause of the injury; some element in the manner of driving must be established. It submitted the plaintiff’s injury resulted from defective seats and adopting a poor posture over extended periods. It was coincidental that she was driving a bus over these periods. It likened the plaintiff’s situation with a case involving a passenger on a bus injured by a protruding nail in a seat during a journey or a defective seat in a bus breaking under the weight of a passenger during a journey.
- [31]Section 5 of the MAI Act limits its application within certain defined limits. The compensable injury must be caused by, through or in connection with a motor vehicle. It must be caused wholly or partly by a wrongful act or omission in respect of the motor vehicle by a person other than the injured person and it must be a result of one or more of the following:
- the driving of the motor vehicle
- a collision with the motor vehicle
- action taken to avoid collision with the motor vehicle
- the motor vehicle running out of control
- a defect in the motor vehicle which causes a loss of control whilst being driven
- [32]I have said that the injury must be a result of one or more of the circumstances set out. I do not think any circumstance operates so as to necessarily exclude the operation of another appropriate circumstance. It cannot be the case for instance that if a cause of personal injury was a defect in an insured motor vehicle, but not one which caused loss of control whilst it was being driven, the Act does not apply irrespective of the other parts of Section 5. Take an example where a motor vehicle being driven at high speed by A who is aware of a leaking fuel system resulting in the vehicle catching alight and burning a passenger, B. There is a defect in the motor vehicle but not a defect which causes its loss of control. B’s injury is caused by a wrongful act or omission in respect of the motor vehicle by A. It is also a result of the driving of the motor vehicle.
- [33]It is arguable in the case of the examples put forward by the second defendant that injury to the passenger was not as a result of the driving of the bus although the bus was driving or being driven at the time the injury was suffered. On the facts given the driving of the bus was or could be seen as incidental to the injury without any causative effect. The plaintiff’s case is not on all fours with the examples. The plaintiff was engaged in driving the vehicle. On the evidence, the injury she suffered was because the driving of the vehicle required her to maintain a posture which caused stresses to her spinal structure.
- [34]The MAI Act is the successor to the Motor Vehicle Insurance Act 1936. That Act prior to its 1988 amendment limited the liability to indemnify under it to situations where the legal liability by way of damages for bodily injury was in respect of an insured motor vehicle and where the injury was caused by, through or in connection with that motor vehicle. The latter requirement dealing with the necessary relationship between the motor vehicle and the injury was interpreted widely in a number of cases.
- [35]The 1988 amendment introduced further limitations which required additionally that the material, accidental bodily injury must be a consequence of:
- the driving of a motor vehicle
- a collision or action to avoid a collision with a motor vehicle when stationary
- a motor vehicle running out of control
- a defect in a motor vehicle
- [36]These are somewhat similar to Section 5(1) of the MAI Act. The only difference is that the requirement in the subparagraph referring to collision that the motor vehicle be stationary, has been removed in the MAI Act and an additional limitation has been added to the subparagraph dealing with a defect in the motor vehicle requiring that it cause a loss of control.
- [37]It is plain that the 1988 amendments were intended to limit the wide interpretation previously applied to the 1936 Act’s application. This is confirmed by the Minister’s second reading speech of the Bill. The purpose of the amendment was to ensure that “cover of “by, through or in connection with a motor vehicle” relates to the more direct use of a motor vehicle” and to “ensure that compulsory third party liability is restricted just to that…and is not extended to matters which are rightly workers’ compensation and public liability claims”.
- [38]Section 5 of the MAI Act was considered by the Court of Appeal in Townsville Trade Waste Pty Ltd v. Commercial Union Assurance Co of Australia Ltd [Appeal No.3020/99 delivered 14/09/99]. At issue was whether the fact situation was within Section 5(1)(a)(ii). The relevant injury occurred whilst an employee, an apprentice mechanic was repairing a garbage collection truck at his employer’s premises. He was standing on its chassis with the rear body of the truck elevated above him by its hydraulic ram. The rear body fell on him, crushing him. Was the employee’s death a result of a collision with the motor vehicle?
- [39]Davies JA obiter said that subparagraphs (1)(i), (iii) and (iv) of Section 5(1)(a) of the MAI Act appeared to be limited in their operation not only to an injury which resulted from the functioning of a motor vehicle or motor vehicles but to one which resulted from the movement of a motor vehicle as a motor vehicle. His Honour went on to hold that subparagraph (ii) was restricted to an injury resulting from collision with a motor vehicle (moving or stationary) in its capacity or function as a motor vehicle, “a category consistent with the restricted operation of the other subparagraphs. The subparagraphs as a whole then provide a consistent and coherent basis for application of the section”. Both Davies JA and White J concluded that the death was not as a result of a collision with the motor vehicle. It was a case of looking “at the circumstances as a whole and [considering] whether they merit the natural and ordinary meaning of the language under consideration in its legislative context” per White J at paragraph 40.
- [40]In Re: FAI General Insurance Company Limited (1996) 2 QdR 230, a tow truck insured under the MAI Act was carrying a motor vehicle also insured under the Act. The motor vehicle being carried left the tow truck during a journey due to the negligence of the owner and driver of the tow truck and was struck by another motor vehicle. Moynihan J held that section 5(1)(a)(ii) of the MAI Act applied. He expressed a view that the word “result” in Section 5(1)(a) connotes consequence, “a cause and effect relationship between injury and collision” (at 233).
- [41]I was referred to a number of decisions in other jurisdictions. The wording of the relevant legislation is of course different.
- [42]In State Government Insurance Commission (SA) v. Wagner (1993) 62 SASR 175, the plaintiff who was employed as a backhoe driver, had driven a backhoe to where it was to be operated. Operation as a backhoe required it be fixed in a stationary position. The plaintiff had done this and was in the process of opening a window in the machine to gain access to a pin to release the bucket from a position in which it was fixed for travelling when he experienced pain in his back. The relevant South Australian legislation provided that liability to indemnify for injury arising out of the use of the motor vehicle was limited to situations where the injury was inter alia “in consequence of the driving of the vehicle”. It was held that the cause of the plaintiff’s injury was not sufficiently connected with the driving of the motor vehicle as to be said to be “in consequence of it”. Olsson J concluded that there were two separate activities, namely driving to the site and what the plaintiff was engaged in when he was injured. The latter had nothing to do with driving the vehicle. The driving was a “precursor to a totally different activity. It was in no relevant sense the cause of that activity. Nor did that activity in the legal sense result from the driving as being the end product of it in terms of proximate cause and effect”. In a later case Workcover Corporation v. Reiter (1997) 26 MVR 17, His Honour said that the activity of the plaintiff in Wagner when injured did not fit the description of an injury in consequence of the driving of the backhoe: “it was distinctly separate and quite divorced from the prior driving activity”.
- [43]In Clyne v. Gulbin (1995) 22 MVR 427, the plaintiff driving a motor vehicle on a road struck a cow which suddenly ran onto the road. The cow was killed, the motor vehicle damaged and the plaintiff injured. The plaintiff sued. The cow had escaped from the defendant’s paddock because of the defendant’s negligence. In issue, for the purpose of deciding the basis upon which the plaintiff’s damages were to be assessed, was whether the plaintiff’s injury arose from a motor accident. The relevant legislation provided that “an injury shall not be regarded as arising from a motor accident if it is not a consequence of the driving of a motor vehicle”. Millhouse J held that the plaintiff’s injuries were not “a consequence of his driving. He did not cause them by his driving. He was not at all responsible for the accident. The accident was “a consequence” of the [defendant’s] negligence in letting his cow escape on to the road”.
- [44]In Workcover Corporation v. Reiter, a truck driver was injured when bales of wool fell on him from a loaded semi-trailer. The load had become destabilised during transit. As in Wagner the question was whether the driver’s injury was a consequence of inter alia the driving of the motor vehicle. Olsson J concluded that the real causative element was the destabilisation of the bails due to the driving of the motor vehicle. He held that the injury was caused as a consequence of driving the motor vehicle. He said:
“there must in a real sense be a direct and proximate relationship of cause and effect between the act of driving and the injury in question. The concept of driving is clearly sufficiently broad to encompass ancillary activity such as acts preparatory to the use of controls to direct the movement of the vehicle or to acts necessary to make a vehicle safe and secure at the end of a journey” at 26.
- [45]In Motor Accident Commission v. ANI Corporation Ltd & Anor (1997) 26 MVR 57, again the question was whether an injury was a consequence of the driving of a forklift. The forklift had driven to the side of a semi-trailer where it was stationary and was lifting steel frames on to the semi-trailer. The injured person had been on the back of the semi-trailer assisting in the loading. He fell from the semi-trailer and was injured whilst the stationary forklift was lifting the steel frames. It was held that the plaintiff’s injuries were not as a consequence of the driving of the forklift. Once it had stopped, it was not being driven but was being used as a loading device.
- [46]In Transport Accident Commission v. Treloar & Ors (1992) 1 VR 447, the relevant statutory provision defined a “transport accident” as “an incident directly caused by or directly arising out of the driving of a motor car”. McGarvie and Gobbo JJ held that “an incident is caused by the driving of a motor car if it is caused by some feature of the driving such as the speed at which, the inattention with which or the place to which the car is driven”. In the case of Treloar the plaintiff had been waiting for a bus. The bus stopped for her and in attempting to board it she lost her footing on the step, fell, and was injured. It was held that her injuries did not directly arise out of the driving of the bus. What was required was that the relevant injury-producing incident be a direct consequence of the driving or the driving be a factor which directly contributed to the incident. By way of contrast in the case of Pedersen, one of the other matters under appeal, a bus on which the plaintiff was a passenger stopped to let the plaintiff and others alight. It was about 8pm. The plaintiff fell when he alighted and was injured. The position where the bus had stopped was unsatisfactory for the purpose of disembarking passengers because they had to alight on to a rough, cobbled gutter where there was inadequate illumination. It was held that a finding that the plaintiff’s injury was directly caused by the driving of the bus was open.
- [47]In Transport Accident Commission v. Jewell (1995) 1 VR 300, the plaintiff had driven a truck to its resting place. The ignition key had broken off in the ignition switch. He stopped the engine and left the truck in first gear. He then removed the ignition assembly, extracted the broken key and replaced the assembly. To check he had correctly rewired the ignition he turned a spare key in the ignition while leaning into the vehicle. The truck moved forward injuring him. Tadgell J held that the injury was caused by a transport accident that is, an incident directly caused by or directly arising out of the driver of a motor vehicle. The injury was caused both by leaving the truck in low gear and by turning the ignition key as much one as the other. The injury would not have occurred had not the driver in the course of driving the truck left it in low gear.
- [48]In Transport Accident Commission v. Iacuone (1998) 28 MVR 505, the claimant had gone to the scene of an accident near his home where a motor vehicle had collided into a tree. As a result, a piece of glass from the shattered windscreen of the motor vehicle became embedded in his foot with serious consequences. Mandie J held that the injury was directly caused by the driving of the motor vehicle into the tree.
- [49]The decision of Olsson J in Reiter was the subject of appeal: (1997) 70 SASR 347. Lander J with whose reasons for dismissing the appeal the other justices agreed, expressed the view that in construing whether an injury was a consequence of driving of the motor vehicle it was not of assistance to apply an “activity test” or by reference to “a question of the proximate cause of the bodily injury received…It will be a question of fact and judgment in every case”. His Honour said “it is not necessary to talk of tests of activity or proximate cause or anything of the kind…It is only necessary to determine whether upon the facts the injuries or death were a consequence of any of the matters in Section 99(3)” at 366.
- [50]Section 5(1)(a) of the MAI Act requires that the injury be “a result” of the enumerated circumstances. I have already referred to the decision of Moynihan J in Re: FAI General Insurance Company Ltd. In Kooragang Cement Pty Ltd v. Bates (1994) 35 NSWLR 452, it was held that the phrase “results from” in workers’ compensation legislation requires no more than a common sense evaluation of the causal chain and was a question of fact. The notion of proximate cause was not determinative of the question (see pages 463-464).
- [51]All these other cases to which I have referred involve an incident which occurred resulting in injury to the plaintiff. The instant case differs. There is no one, or even two identifiable incidents resulting in injury. Rather there was a number of occasions of driving a bus with the defective seat which apparently accumulated damage to the plaintiff’s back, resulting in injury the subject of the agreed damages.
- [52]The objects of the MAI Act include the continuation and improvement of the system of compulsory third party motor vehicle insurance and the encouragement of speedy resolution of personal injury claims resulting from motor vehicle accidents: Section 3. The Act regulates the making and resolution of motor vehicle accident claims. The provisions of the Act relating to claims, their resolution by legal proceedings or otherwise and judgment are all based on there being a motor vehicle accident claim that is, a claim for damages based on a liability for personal injury arising out an incident in which personal injury is caused by, through or in connection with a motor vehicle that is, a motor vehicle accident: see the definitions in Section 4 of “motor vehicle accident claim” and “motor vehicle accident”. Section 5 further limits the application of the Act as set out above.
- [53]The way in which the plaintiff suffered personal injury is not at first glance readily described as an incident or a motor vehicle accident. Section 32C of the Acts Interpretation Act 1954 of course provides that in an Act, words in the singular include the plural. Section 4 of that Act has the effect that the application of Section 32C may be displaced by a contrary intention appearing in the MAI Act.
- [54]Section 23 of the MAI Act has the effect that upon registration or renewal of registration of a motor vehicle a policy of insurance in terms of the schedule to the Act comes into force for that motor vehicle with the licensed insurer selected under Division 2 of Part 3 of the Act (the standard policy). Clause 1(1) of the standard policy provides that it “insures for personal injury caused by, through or in connection with the insured motor vehicle anywhere in Australia”. Clause 2 provides for cover for “the owner, driver, passenger or other person whose wrongful act or omission in respect of the insured motor vehicle causes the injury to someone else…” The wording of the policy in its terms is not limited to a specific incident or incidents as a cause of injury to a person. However the personal injury to which the policy applies is personal injury to which the MAI Act applies namely, that arising out of a motor vehicle accident; an incident in which personal injury is caused by, through or in connection with the motor vehicle.
- [55]I find that the injury to the plaintiff the subject of agreed damages was as a result of the driving of the buses with the defective seat. Driving of these buses required her to maintain a posture which caused stresses to her spinal structure resulting in the injury to her. The posture resulted from the defective seat and because it was necessary for the driving of the bus. In that sense the injury was a result of driving a bus. It was also a result of a defect in the driver’s seat of the bus which was not a defect which caused its loss of control whilst being driven.
- [56]However, I find that the plaintiff’s injury was not personal injury arising out of a motor vehicle accident. For the Act and the standard policy to apply there must be a motor vehicle accident that is, an incident or incidents in which personal injury is caused by through or in connection with an insured motor vehicle. Here there was no such identifiable incident. There was rather a number of occasions of driving of buses with the defective seat the cumulative effect of which was injury to the plaintiff’s back.
- [57]I give judgment for the plaintiff against the first defendant for $70,000.