Delaney v Commercial Building Centre Pty Ltd & Nrma Insurance Ltd [2003] ACTSC 17 (28 March 2003)

Last Updated: 2 April 2003

KEVIN DELANEY v COMMERCIAL BUILDING CENTRE PTY LIMITED

t/as COMMERCIAL BUILDING CENTRE and NRMA INSURANCE LIMITED

[2003] ACTSC 17 (28 March 2003)

PRACTICE AND PROCEDURE - Third Party Notice - whether accident "arising out of the use of motor vehicle" - worker in chain passing goods to be loaded onto truck - not arising out of use of motor vehicle.

Motor Traffic Act 1936, s 54(1)(b)

State Government Insurance Commission v Stevens Brothers Proprietary Limited [1984] HCA 32; (1984) 154 CLR 552

Fawcett v BHP By-Products Proprietary Limited [1960] HCA 59; (1960) 104 CLR 80

The Government Insurance Office of New South Wales v King [1960] HCA 60; (1960) 104 CLR 93

Government Insurance Office of New South Wales v RJ Green & Lloyd Pty Limited [1966] HCA 6; (1965) 114 CLR 437

Balfour Beatty Power Constructions (Australia) Pty Ltd v Government Insurance Office of New South Wales [1996] 24 MVR 162

CE Heath Underwriting and Insurance Pty Ltd v George Weston Foods (unreported, 6 October 1993, Victorian Court of Appeal)

No SC 661 of 2001

Judge: Connolly J

Supreme Court of the ACT

Date: 28 March 2003

IN THE SUPREME COURT OF THE )

) No SC 661 of 2001

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: KEVIN DELANEY

Plaintiff

AND: COMMERCIAL BUILDING CENTRE PTY LIMITED

(ACN 083 816 497) t/a COMMERCIAL BUILDING CENTRE

Defendant

AND: NRMA INSURANCE LIMITED

(ACN 000 0167 22)

Third Party

ORDER

Judge: Connolly J

Date: 28 March 2003

Place: Canberra

THE COURT ORDERS THAT:

1. The Third Party Notice be dismissed with costs.

1. This matter falls for decision on a narrow but important point arising from a third party contribution claim brought by the defendant employer against the third party motor vehicle insurer in the course of an employment personal injuries claim. The plaintiff was injured at work in the course of activities, which involved the loading of a truck and brought action against his employer. The employer has joined the insurer of the truck. The substantive action between the injured worker and his employer was settled by consent judgment on 18 February 2003. The third party proceedings remain in issue.

2. Counsel for the parties prepared an agreed statement of facts, which substantially shortened these proceedings. This was an entirely appropriate and sensible approach, and counsel are to be commended for this. The agreed statement is as follows:

On 30 July 1999, Mr Delaney was one in a team of three people helping to move 20-kilogram bags of plaster from a pallet on the ground, onto a delivery truck for the purpose of subsequent delivery. "Mick", the man standing beside the pallet, grasped the first bag from the stack at about waist height and passed it to Mr Delaney, who received it. Mr Delaney turned around and taking a small step, passed the bag to "Brian" who placed it onto the tray of the 7 tonne truck. On the second occasion, Mick grasped the next 20-kilogram bag from the pallet, and again at about waist height, passed it to Mr Delaney who received it and turned to pass it to Brian, to place onto the truck. Brian is taller than Mr Delaney and this meant that when he passed the bag to Brian he (Mr Delaney) went up on his toes to pass the bag at an appropriate level for Brian to receive it. It was at that precise moment that Mr Delaney heard a popping sound and immediately experienced a sharp pain in his back that shot down into his right leg.

3. It is common ground that the truck was covered by a third party motor vehicle insurance policy of the type required by s 54(1)(b) of the Motor Traffic Act 1936, that is to say, an insurance policy to cover liability "in respect of the death of, or bodily injury to, any person caused by or arising out of the use of the motor vehicle". This is a phrase that has been used in other jurisdictions within Australia, and has been the subject of judicial consideration. The reported cases tend to involve facts where a worker has been injured and brought a suit against the employer, and the employer or its insurer seeks to bring in the motor vehicle insurer. The question here is whether the plaintiff's injury arose out of the use of the motor vehicle.

4. Mr Parker, for the defendant, argued that the plaintiff was involved in a course of conduct involving the loading of the truck, and that accordingly it can be said to be an injury arising out of the use of the motor vehicle. He submitted, appropriately, that the phrase "arising out of" must be given a broader construction than the alternative phrase used in the Act, that is "caused by". This point is supported by authority in State Government Insurance Commission v Stevens Brothers Proprietary Limited [1984] HCA 32; (1984) 154 CLR 552, where Murphy, Wilson, Brennan and Deane JJ said at 555:

... the expression "arising out of" must be taken to require a less proximate relationship of the injury to the relevant use of the vehicle than is required to satisfy the words "caused by".

5. In Fawcett v BHP By-Products Proprietary Limited [1960] HCA 59; (1960) 104 CLR 80 the employer sought to recover against the third party insurer in circumstances where a worker who was employed to drive a loader was injured when the bucket of the loader jammed and then pinned him to the vehicle. Menzies J rejected the proposition that such an injury would arise from the use of the machine as a loader and not as a vehicle. His Honour said at 87:

The Act is not, I think, concerned with fine distinctions but requires the issue of a policy that covers liability arising out of everything that falls fairly within the conception of the use of a motor vehicle.

6. In the subsequent decision of The Government Insurance Office of New South Wales v King [1960] HCA 60; (1960) 104 CLR 93, Dixon CJ noted that:

... it must always be kept in mind that all the incidents attending the actual use of the vehicle form part of its use.

7. Mr Parker argues for a similar broad construction which would see the whole operation of the loading as conduct arising from the use of the motor vehicle.

8. Mr McDonogh, for the third party, took me to the line of authority commencing with the decision of the High Court in Government Insurance Office of New South Wales v RJ Green & Lloyd Pty Limited [1966] HCA 6; (1965) 114 CLR 437, where a worker was injured while engaged in loading a hoist onto a tray-top truck by means of a rope. Barwick CJ said at 442:

I do not think that every act in loading a vehicle for the conveyance of what is loaded upon it is necessarily a use or a part of the use of the motor vehicle. But the act of actually placing the load on the part of the vehicle designed to bear it during transport and for the purpose of its transportation, must, in my opinion, be a use of the motor vehicle in the sense relevant to the Act and to the terms of the policy.

9. His Honour continued at 443:

On the other hand, injuries received away from the vehicle but in the course of bringing goods or things to it to be loaded upon it ought not, if no more appears, to be regarded as having arisen out of the use of the motor vehicle. To say that the operation of loading and unloading a transport vehicle is part of its use is to state the matter too widely.

10. This latter view was restated by Dawson J in State Government Insurance Commission v Stevens Brothers Proprietary Limited where he said at 559:

Although the cases establish that a broad view should be taken of what amounts to use of a vehicle in the context of the relevant policy, they also establish that there are limits and that not all acts upon or in relation to a vehicle involve the use of that vehicle.

11. In Balfour Beatty Power Constructions (Australia) Pty Ltd v Government Insurance Office of New South Wales [1996] 24 MVR 162, the New South Wales Court of Appeal was considering an appeal where the trial judge had held that an injury that occurred as a worker was lifting a piece of machinery that was then to be carried some seven metres to be placed on the rear of a truck was not an injury arising out of the use of the motor vehicle. This was reversed on appeal. Mahoney P made the observation that the courts have taken a case by case approach to loading cases, and said:

The courts have frequently had to consider whether loading of a motor vehicle may, within the criterion, be the use of the motor vehicle. They could have determined that loading, as such, was not within it. The High Court has established that an injury suffered in the course of loading a motor vehicle may be an injury arising out of the use of that motor vehicle within the criterion. But, it has said, not every injury suffered in the course of loading a motor vehicle is necessarily so.

12. His Honour concluded that:

The lifting which caused the injury was, I think, part of the process by which it was lifted onto the trailer. The press was to be carried some six or seven metres. But having been lifted, it was to be carried immediately to the trailer and put on it. It was not to be carried, as in some cases may occur, a substantial distance to the motor vehicle, with pauses in between.

13. Meagher JA (with whom Beazley J agreed) said that loading a trailer is incidental to its normal use, and continued:

But that does not mean that whatever is done that is incidental or ancillary to such loading is itself a use of the vehicle in the relevant sense. Therefore, if a person suffers bodily injury when engaged upon some task connected with loading, the question whether his injury was caused by or arose out of the use of the vehicle depends upon whether it was a consequence, direct and not remote, of the operation of loading.

14. His Honour concluded:

In the present case the vehicle was used for loading. It was not being used for some purpose incidental or ancillary to loading. Picking up the "press", carrying it to the truck, and placing it on the truck are all within the description of "loading". They relevantly, form one undivided action, performed by one person at one place at one time.

15. In CE Heath Underwriting and Insurance Pty Ltd v George Weston Foods (unreported, 6 October 1993) the Victorian Court of Appeal held that an injury that occurred when a worker was lifting a tray of products from a wheeled trolley in the course of preparing to load the tray into a truck did not arise out of the use of the motor vehicle. Marks J in the Court of Appeal (with whom Gobbo and Coldrey JJ agreed) held that:

The acts of the plaintiff in the subject occurrence did not involve any contact with, or any act done upon or in relation to or in other association with, the van. The movements of the plaintiff and his conduct were directed to the purpose of loading the van but were previous to a positive act of loading.

16. The contrary conclusions reached by the Victorian and New South Wales Courts of Appeal seem to me, with respect, to reflect more a difference of opinion on the application of the facts to the general principles, rather than a disagreement as to fundamental principle. As Mahoney P stated in Balfour Beatty Power Constructions (Australia) Pty Ltd, the question as to whether an injury arises from the use of a motor vehicle:

... is indeterminate in the sense that the application of it to a set of facts does not - at least in the present case - lead inevitably to one conclusion rather than another.

17. In each of the decided loading type cases where the injury has been held to have arisen out of use of the motor vehicle, the loading operation has involved one worker in a continuous process. In CE Heath Underwriting and Insurance Pty Ltd, the Victorian Court of Appeal took the view that the movements of the tray was an action preparatory to, and not forming part of, the act of loading, even though the act was by the same worker who would have then moved the trays onto the truck.

18. While the question of whether an activity of loading arises out of the use of a motor vehicle is essentially a question of fact, and the High Court has reminded us to avoid "fine distinctions", it seems to me that it can at least be said that for the loading activity to arise from the use of the motor vehicle the action of the worker which gives rise to the injury must at least be part of a single process of loading. In the present case, the problem, it seems to me, is that the injured worker was not himself in the process of placing the bag of plaster onto the truck. He was, rather, handing the bag to another worker who was to place the bag on the truck. Where one worker passes the load to another, it seems to me that the link between the action of lifting the bag and the use of the motor vehicle has not been made, as this worker has and intended to have no contact with the motor vehicle - that was the task of the next worker in the line.

19. It seems to me that, if in these circumstances the action can be said to have arisen in the course of the use of a motor vehicle, there would be no practical limit to the end point of liability. It is clearly established that not all acts upon or in relation to a motor vehicle, or indeed any action related to the operation of loading or unloading a transport vehicle gives rise to a liability under the policy. While the apparently different conclusions reached by the Victorian and New South Wales Courts of Appeal reinforces the observation by Mahoney P that "minds may differ" as to whether the criterion is established, both cases involved a single worker involved in a continuous process of individually loading the vehicle.

20. Where a worker takes part in a process of handing material to another worker, who goes on to load the vehicle, it seems to me that the action is too remote from the use of the vehicle, and the responsibility should properly lie with the employer. As Windeyer J said in Government Insurance Office of New South Wales v RJ Green & Lloyd Pty Limited at 447:

The words "injury caused by or arising out of the use of the vehicle" postulate a causal relationship between the use of the vehicle and the injury. "Caused by" connotes a "direct" or "proximate" relationship of cause and effect. "Arising out of" extends this to a result that is less immediate; but it still carries a sense of consequence. It excludes cases of bodily injury in which the use of the vehicle is a merely casual concomitant, not considered to be, in a relevant causal sense, a contributing factor.

21. I am of the view that in these circumstances the plaintiff's injury cannot be said to have arisen out of the use of the motor vehicle. Accordingly, the Third Party Notice should be dismissed, with costs, and the full consequence of the judgment should lie against his employer.

22. I order that the Third Party Notice be dismissed, with costs.

I certify that the preceding 22 (twenty-two) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Connolly.

Associate:

Date: 28 March 2003

Counsel for the defendant: Mr FG Parker

Solicitor for the defendant: Dibbs Barker Gosling

Counsel for the third party: Mr MA McDonogh

Solicitor for the third party: Sparke Helmore

Date of hearing: 11 March 2003

Date of judgment: 28 March 2003