Sloane v Yuruga Nursery Pty Ltd
[2004] QSC 20
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- Unreported Judgment
- Sloane v Yuruga Nursery Pty Ltd[2004] QSC 20
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Sloane v Yuruga Nursery Pty Ltd[2004] QSC 20
Sloane v Yuruga Nursery Pty Ltd[2004] QSC 20
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | |
Trial | |
PROCEEDING: | Application |
ORIGINATING COURT: | |
DELIVERED ON: | 23 February 2004 |
DELIVERED AT: | Cairns |
HEARING DATE: | 15 July 2003 |
JUDGE: | Jones J |
ORDERS: | (1)On the fourth party proceedings, judgment for the fourth party against the first third party. (2)The first third party pay the costs of and incidental to the fourth party to be assessed on the standard basis. (3)Such costs to be the first third party’s cost in the cause. (4)The operation of orders two and three above will be delayed for fourteen days during which time I will receive submission from parties wishing to argue for costs orders in different terms. |
CATCHWORDS: | Procedure – Supreme Court Procedure – Pleadings – Statement of Claim- FAILURE TO DISCLOSE A CAUSE OF ACTION- Whether Notice and Statement of Claim can be struck out pursuant to r 171 of the Uniform Civil Procedure Rules 1999 – Whether summary judgement can occur pursuant to r 293 of the Uniform Civil Procedure Rules 1999. INSURANCE – PERSONAL INJURIES – s 5(1)(b) of the Motor Accident Insurance Act 1994 (Qld) – where vehicle stored cargo which became unstable when unloaded – whether injury suffered by plaintiff was caused by an act or omission in respect of a motor vehicle Motor Accident Insurance Act 1994 Uniform Civil Procedure Rules 1999 Brew v WorkCover Queensland (2003) QCA 504 cited. Curtin Bros Qld Pty Ltd v FAI General Insurance Company Limited (1995) 1 QdR 142 cited Palmer v Harker Transport Services Pty Ltd (2003) QCA 513 cited. Patullo v Grays Sawmills Pty Ltd (1995) 2 QdR 528 cited. Purt v State of Queensland (2003) QCA 503 cited. Swain v Hillman (2001) 1 AllER 91 followed Technical Products Pty Ltd v State Government Insurance Office (Queensland) (1989) 167 CLR 45 followed. |
COUNSEL: | Houston G for the third third party Holyoak K (4th Party) |
SOLICITORS: | K.M Splatt & Associates for the plaintiff MacDonnells for the defendant McInnes Wilson for the first third party Kennedy Spanner for the second third parties Ross Mangano for the third third party Walsh Halligan Douglas for the fourth party |
- On 27 January 1998 the plaintiff sustained injuries in the course of his employment with the defendant, Yuruga Nursery Pty Ltd, at its premises at Walkamin in the State of Queensland. The plaintiff’s task at the time was the unloading from a semi-trailer of a large quantity of plastic nursery trays. According to the pleadings the load consisted of some 19,800 such trays and weighed in the vicinity of 20 tonne. The trays had been stacked on top of each other inside a fully enclosed trailer to within a half of metre of the trailer’s roof. To contain the load a piece of plywood was placed at the rear of the load and the plywood was secured with load bars.
- The plaintiff had climbed on to the rear of the trailer preparatory to assisting in the unloading operation. When the load bars, which had secured the load, were removed part of the stacked trays gave way, knocking the plaintiff from the trailer to the ground with some of the trays falling on top of him.
- The plaintiff brings this claim for damages only against his employer, alleging in general terms, negligence by reason of an unsafe system of work, a failure adequately to instruct, supervise or warn the plaintiff and other employees, and a failure to check on the stability of the load before releasing the load bar. The release of the load bar was, in fact, performed by the truck driver, Mr. McClymont the third third party.
- By its defence, the defendant denies that it failed to take reasonable care for the plaintiff’s safety and asserted that it was not aware, nor reasonably able to become aware, that the road was unstable. The defendant contends that the instability was a direct result of the manner in which the trays had been packed.
- The defendant commenced third party proceedings alleging negligence on the part of the freighting company (the first third party), the distributors of the trays (second third party) and the driver of the vehicle, (third third party). The principal allegation against the first and second third parties was that each alone, or in combination with the other, was responsible for the manner in which the trays were packed into the trailer at Brisbane. The allegations of negligence against the third third party relate specifically to his actions when commencing the unloading task and make no reference to his driving of the motor vehicle.
- The first third party accepts sole responsibility for the packing of the trays into the trailer but asserts that the trays were stacked properly and secured in accordance with industry practice.
- The second third party denies any responsibility for the packing of the trailer.
- The first third party without any opposition from the other parties, commenced fourth party proceedings against Suncorp Metway, the licensed insurer of the prime-mover. The first third party claimed an entitlement to indemnity from the insurer on the basis that it was an “insured person” under the statutory policy prescribed by the Motor Accident Insurance Act 1994 (“the Act”). The allegation in para 6(b) of the Third Party Statement of Claim to the effect that the load had moved during the course of the journey from Brisbane. That alleged fact was not relied upon as a basis for any particular allegation of negligence relating to the driving of the motor vehicle. See paras 8 to 10 of the defendant’s Statement of Claim. The first third party’s Statement of Claim in the fourth party proceedings then alleges:-
“3. In the light of the plaintiff’s [sic] allegations contained in the Statement of Claim, the first third party says:-
- The circumstances of the accident, in particular, but not limited to, the moving of the load in the journey driven by the Third Third Party in the truck insured by the Fourth Party, was an occurrence which is contemplated in s 5(1) of the Motor Accident Insurance Act 1994 in that, but not limited to, the shifting of the load, arose as a result of the driving of the motor vehicle.”
- The fourth party, by its defence, denies any obligation to insure the third party under the provisions of the Act. It contends that the first third party was not an insured person and that the plaintiff’s injury was not caused within the ambit of s 5(1) and consequently the Act has no application in the circumstances. Further, the fourth party argues that if, in the circumstances, the Act does apply the plaintiff has not given the requisite notices pursuant to s 37 of the Act and that the action is a nullity having been commenced without the compliance with Division 3 of Part 4 of the Act.
- The fourth party now makes application for the fourth Notice and Statement of Claim to be struck out pursuant to r 171 of the Uniform Civil Procedure Rules 1999 (UCPR) on the grounds that those proceedings doe not disclose a cause of action, or alternatively, for summary judgment, pursuant to r 293 of the UCPR.
- The application can be disposed of quite quickly on the alternative basis suggested by the applicant. This is because it is common ground that the plaintiff did not give the requisite notices pursuant to s 37 of the Act and he commenced the proceeding without complying with Division 3 of Part 4 of the Act. If then, the circumstances of the case, brings the action within the ambit of the Act, the plaintiff’s failure to comply with pre-trial requisites results in the proceedings being incompetent.
- The applicant is thus in the position that if the Act does not apply it cannot be made liable to indemnify. If the Act does apply the proceeding is a nullity and no order can be made against the fourth party.
- Given these circumstances the fourth party’s submission that the proceedings against it are doomed to fail is correct. That being the case it seems to me that the fourth party is entitled to finality which can be best achieved by pronouncing judgment in its favour pursuant to r 293 of the UCPR. The justification for making the order that I propose is embodied in the remarks of Lord Wolfe in Swain v Hillman[1] where His Lordship said:-
“The proper disposal of an issue under [the rule] does not involve the judge conducting a mini-trial, that is not the object of the provisions; it is to enable cases, where there is no real prospect of success either way, to be disposed of summarily.”[2]
In the circumstances of this case the disposition of the third fourth party proceedings in accordance with this principle is clearly indicated.
Does the Motor Accident Insurance Act apply?
- The parties however have argued the issue of the applicability of the Act and I should therefore give some consideration to the matter notwithstanding the applicant’s entitlement to succeed on the application.
- The first point for consideration is whether the first third party can claim to be an insured person under the statutory policy. Clause 2 of the policy provides:-
“2. Insured Person
The person insured by this policy is 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 and any person who is vicariously liable for the wrongful act or omission.”
The policy must be read consistently with the terms of the Act which gives rise to the insurer’s obligations to indemnify.
- The scope of the cover provided by the Act is set out in s 5(1) which has the following relevant terms:-
“5(1) This Act applies to personal injury caused by, through or in connection with a motor vehicle if, and only if, the injury –
- is a result of –
- The driving of the motor vehicle;
…and
- is caused, wholly or partly, by a wrongful act or omission in respect of the motor vehicle by a person other than the insured person.”
- Thus, it is seen that the first third party falls to be indemnified only if it is liable for a wrongful act or omission in the respect of the insured motor vehicle. Even through the plaintiff makes no allegation of negligence which relies upon the driving of the motor vehicle or which otherwise brings the Act into contention. There may however be alternative bases for liability. That fact is of no consequence if in the factual circumstances the claim is within the ambit of s 5(1) of the Act. See Curtin Bros Qld Pty Ltd v FAI General Insurance Company Limited[3]; Patullo v Grays Sawmills Pty Ltd[4]
- To fall within s 5(1) of the Act two questions both of which must be answered in the affirmative –
- Is the injury a result of the driving or the motor vehicle;
- Is the injury caused by a wrongful act in respect of the motor vehicle by a person other than the plaintiff.
- With regard to the first question, there is no suggestion anywhere that the driving constituted a wrongful act or omission that caused the injury to the plaintiff. A mere factual assertion that the load moved during transportation does not, in my view, amount to an allegation that the injury was caused by the driving. One expects there would be some movement in any load over such a long journey. The movement may well have had a settling effect on the load such as to make it more stable than it was initially. The point is the evidence before me does not make any connection between the driving and the mere assertion of “moving” and “shifting” of the load. The plaintiff’s injury is the result of the trays falling upon him during unloading. The activity of driving had ceased by this time. What has not been shown, to this stage is any link between the driving and the cause of the injury namely the instability of the trays. No such link has been alleged in any of the pleadings.
- With regard to the second question, the test for determining whether a wrongful act or omission is “in respect of a motor vehicle” has been much referred to in various decisions of this Court but was authoritatively determined by the High Court in Technical Products Pty Ltd v State Government Insurance Office (Queensland)[5] where the Court considered the equivalent section in earlier legislation. The majority (Brennan, Deane, Gaudron JJ) said:-
“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 (the section) 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.”[6]
To similar effect, Dawson J in the same case said that “a merely coincidental or extraneous connection between (the liability for damages and the motor vehicle) can hardly be sufficient”.[7]
- That test is applied to widely varying circumstances. It is this fact that gives rise to the large number of cases to which this Court is referred from time to time in considering questions such as this. I have been specifically referred to recent decisions of the Court of Appeal – Purt v State of Queensland[8]; Brew v WorkCover Queensland[9]; and Palmer v Harker Transport Services Pty Ltd[10]. Each of these appeals concerned a reconsideration of an application of the above test. I do not propose to refer to these decisions in detail. Each concerned a claim by the driver of a vehicle whose driving resulted in a loss of control of the vehicle causing injury to himself. Though the claims were made on allegations of unsafe systems of work, the Court of Appeal in each case had little difficulty in reaching the conclusion that the claim fell within the ambit of s 5(1) of the Act.
- The instant case is quite different factually insofar as the vehicle was not being driven at the time and the person claiming to be an “insured person” had no connection with the vehicle other than having loaded it at an earlier time. Loading is quite different to driving. Again I have been referred to a number of cases with somewhat similar facts which do not require close analysis. It is a feature of the application of the relevant test that the Court is often referred to as a host of first instance decisions.
- But it is sufficient to respond to the arguments advanced by counsel on this application to note that that issue ultimately must turn on the evidence adduced at trial. The assessment of whether the injury is a result of the driving is a question of fact and degree. This assessment in my view, depends upon more than mere temporal connection with the driving and more than a mere assertion that the load moved. The evidence before me on this application does not permit any formal adjudication of the issue.
Orders
- 1.On the fourth party proceedings, judgment for the fourth party against the first third party.
(5)The first third party pay the costs of and incidental to the fourth party to be assessed on the standard basis.
(6)Such costs to be the first third party’s cost in the cause.
(7)The operation of orders two and three above will be delayed for fourteen days during which time I will receive submission from parties wishing to argue for costs orders in different terms.