Purt v State of Queensland[2002] QSC 467

SUPREME COURT OF QUEENSLAND

1. The plaintiff in this case was injured 9 January 1997 when his All Terrain vehicle (“ATV”), provided for the purposes of distributing fruit-fly baits in the Mowbray area, struck a rock concealed by some long grass and rolled over.

2. In paragraph 8 of the Amended Statement of Claim the plaintiff pleads that the acts or omissions of the defendant which caused or contributed to the accident involving the ATV were the defendant’s failure to make a proper risk assessment of the suitability of the ATV for purposes of bait distribution, the defendant’s failure to institute and maintain a safe system of work by supplying the ATV’s to be driven and the defendant’s failure properly to instruct the plaintiff in their safe operation.

3. In paragraph 4 of the Defence the defendant has pleaded that such wrongful omissions attract the operation of the Motor Accident Insurance Act (the “MAIA”). 

4. The plaintiff has applied to have paragraph 4 of the defendant’s Defence struck out. In response the defendant, relying on that same paragraph, has applied to have the plaintiff’s proceedings summarily dismissed by way of summary judgment for the defendant under UCPR r 293.

5. It is not in contention that the MAIA does apply to the vehicle involved in the accident. However the MAIA applies to personal injury caused by, through and in connection with the motor vehicle “if and only if” the injury:-

“(a)is a result of

1. the driving of the motor vehicle;

2. …

3. the motor vehicle running out of control; or

4. a defect in the motor vehicle causing loss of control of the vehicle while it was being driven; and

2. is caused wholly or partly by a wrongful act or omission in respect of the motor vehicle by a person other than the injury person.”^[1]

6. It is not in contention, either, that the circumstances pleaded meet the first limb in s 5 of the MAIA. What is in issue is whether or not the omissions alleged in paragraph 8 of the Amended Statement of Claim are wholly or partly a cause of the personal injury “in respect of the motor vehicle”. The applicant contends that they do not. The respondent contends that they do.

7. In Technical Products Pty Ltd v State Government Insurance Office (Queensland)^[2] the nexus between legal liability and motor vehicle was held not to exist “unless there be some discernible and rational link between the basis of legal liability and the particular motor vehicle” (per Brennan, Deane and Gaudron JJ at 47).

8. The necessary nexus was illustrated in Suncorp Insurance and Finance v Workers’ Compensation Board of Queensland^[3] [1990] 1 QdR 185.  In that case some of the heads of the defendant’s negligence related to insured motor vehicle and some did not.  But the court found it was “possible to be liable in respect of a system of work involving that vehicle” (per Derrington J at 190).  The Suncorp case was applied in Curtain v FAI^[4] where the basis of the liability was a failure to warn an employee about a dangerous feature of a private road the employer controlled, the necessary nexus was also found.

9. However in Megaw v Suncorp Metway Insurance Ltd^[5] [2002] 1 QdR 499 the necessary nexus was not found.  In that case  Mackenzie J found that circumstances such as the failure of the employer to find out the appellant’s level of driving skill, to take account of his level of experience and training and to warn of the dangers of driving on dirt tracks were not to be characterised as being “in respect of” a motor vehicle, but rather as omissions with respect to the safe system of work.  It is on this case that the applicant in this matter relies.

10. But in the even more recent case of Brew v WorkCover Queensland^[6]  [2002] QSC 416, where there was a failure to provide a safe system of work in relation to the number of hours the applicant was obliged to drive a delivery truck, Cullinane J found such a failure did not prevent the necessary nexus being illustrated.  He adopted the same approach as that adopted in Suncorp v Workers’ Compensation Board and in Curtain, namely, that the alleged liability of the employer is a liability “in respect of” the vehicle concerned.

11. It is my view that the same approach should be adopted in deciding this matter. The omissions pleaded in paragraph 8 of the Amended Statement of Claim are omissions which do attract the operation of the MAIA.

12. However no notice of an accident claim has been given, as is required by s 37(1) of the MAIA, nor has any application been made to the Court pursuant to s 39(5) to further proceed on the claim despite the non-compliance. Further the period of limitation has ended and so, pursuant to s 57(1), no application for leave to bring a proceeding may now be made. Hence, as counsel for the plaintiff has conceded in these circumstances the proceedings are a nullity.

13. My orders are as follows:-

1. The plaintiff’s application is dismissed;

2. The plaintiff to pay the defendant’s costs on a standard basis.

3. The plaintiff’s claim is struck out;

4. The plaintiff to pay the defendant’s costs of and incidental to the action to be assessed on the standard basis.