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Supreme Court of the ACT |
Last Updated: 9 March 2011
ALLIANZ AUSTRALIA INSURANCE LIMITED v INSURANCE AUSTRALIA LIMITED
[2011] ACTSC 19 (14 February 2011)
INSURANCE – whether a workman injured in the course of the loading of a stationary tipper truck ordinarily driven by him suffered injuries which were “... caused by or arose out of the use of a motor vehicle ...” thereby engaging the relevant compulsory third party policy – whether, in the circumstances of the case, the principles of double insurance apply as between the statutory workers compensation insurer and the statutory compulsory third party motor vehicle insurer of an employer whose employee was injured during the loading of his tipper truck
WORDS AND PHRASES – meaning of the phrase “bodily injury to a person caused by or arising out of the use of a motor vehicle...” discussed
Motor Traffic Act 1936 (ACT), ss 4(1), 51(1), 52(1), 54(1)
Workers’ Compensation Act 1951 (ACT)
Albion Insurance Co Ltd v Government Insurance Office (NSW) [1969] HCA 55; (1969) 121 CLR 342
Commercial and General Insurance Co Ltd v Government Insurance Office (NSW) [1973] HCA 51; (1973) 129 CLR 374
Commercial Building Centre Pty Ltd v NRMA Insurance Ltd [2004] ACTCA 3
Fawcett v BHP By-Products Pty Ltd [1960] HCA 59; (1960) 104 CLR 80
Government Insurance Office of New South Wales v RJ Green & Lloyd Pty Ltd [1966] HCA 6; (1966) 114 CLR 437
No. SC 880 of 2009
Judge: Foster J
Supreme Court of the ACT
Date: 14 February 2011
IN THE SUPREME COURT OF THE )
) No. SC 880 of 2009
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN: ALLIANZ AUSTRALIA INSURANCE LIMITED (ACN 000 122 850)
Plaintiff
AND: INSURANCE AUSTRALIA LIMITED (ACN 000 016 722)
Defendant
ORDER
Judge: Foster J
Date: 14 February 2011
Place: Sydney (via video link to Canberra)
THE COURT ORDERS THAT:
1. On 8 April 1996, in circumstances which I will explain more fully below, Bruce Van Den Dungen was injured during a clean-up of the old Canberra Times site at Pirie Street Fyshwick ACT (the site). Mr Van Den Dungen was injured when he was hit by a concrete object as he was standing near his tipper truck which was parked on the site. The truck had been driven to the site by Mr Van Den Dungen. At the time when Mr Van Den Dungen was struck, his truck was being filled with debris from the site by a bobcat which was being operated by Mr John Robinson.
2. In proceeding SC 364 of 2000 in this Court, Mr Van Den Dungen sued his employer, Cabiria Pty Limited trading as Lopilato Bros (the employer) and Mr Robinson for damages for personal injury arising out of the events described at [1] above.
3. On 26 May 2009, judgment was entered in favour of Mr Van Den Dungen against the employer in the amount of $225,000 plus costs (the judgment). At the same time, the following additional orders were made by the Court:
4. The employer was insured by Allianz Australia Insurance Limited (Allianz) against the liabilities reflected in the judgment. Allianz was the workers compensation insurer of the employer pursuant to a statutory insurance policy issued by it under the Workers Compensation Act 1951 (ACT) (the Workers Compensation Act).
5. On 1 July 2009, Allianz paid the amount of the judgment to Mr Van Den Dungen. On 14 July 2009, Allianz paid Mr Van Den Dungen’s costs assessed and agreed at $75,421.03.
6. Allianz did not pay any interest on the judgment or on the amount of the costs which the employer was ordered to pay Mr Van Den Dungen.
7. At the time of the accident, Insurance Australia Limited (IAL) was the insurer of the employer pursuant to a statutory compulsory motor vehicle third party policy issued by it under the Motor Traffic Act 1936 (ACT) (the Motor Traffic Act). IAL is the defendant in the present proceeding. At the time Mr Van Den Dungen was injured, his truck was owned by the employer and was thus covered under the compulsory third party policy issued by IAL in favour of the employer.
8. In this proceeding, Allianz contends that the employer was indemnified in respect of its liability to Mr Van Den Dungen under both the workers compensation policy issued by it to the employer and under the third party policy effected by the employer with IAL. Allianz submits that the principles of double insurance apply with the consequence that it is entitled to recover from IAL by way of contribution half of the amount of the judgment and half of the amount of costs paid by it to Mr Van Den Dungen together with interest on those amounts running from the date of payment by Allianz to Mr Van Den Dungen in each case.
9. There is no dispute in the present proceeding as to the following matters, namely that:
(a) On 8 April 1996, whilst at the site between the hours of 10.30 am and 11.00 am, Mr Van Den Dungen was struck by an L-shaped piece of concrete kerbing and injured.
(b) The concrete kerbing struck him on the right shoulder.
(c) He sustained injuries to his right shoulder and back.
(d) He underwent lower back surgery on 21 February 1997, which surgery was directly related to the injuries which he sustained on 8 April 1996.
(e) Allianz was liable to indemnify the employer in respect of the injuries suffered by Mr Van Den Dungen at the site on 8 April 1996 and in respect of the costs of proceeding No SC 364 of 2000.
(f) The amount of the judgment was a reasonable amount for which to settle Mr Van Den Dungen’s claims.
(g) The amount of costs agreed between Allianz and Mr Van Den Dungen was a reasonable sum for those costs.
(h) Allianz was the employer’s workers compensation insurer at the material time.
(i) IAL was the third party insurer of the employer in respect of Mr Van Den Dungen’s truck at the relevant time.
10. The only issues in the case raised by IAL were:
(a) Whether the piece of concrete kerbing which struck Mr Van Den Dungen fell from the back of the truck or from the side of the truck or directly from the bucket of the bobcat; and
(b) Whether the employer was liable to Mr Van Den Dungen in respect of the injuries sustained by him on 8 April 1996 at the site and whether those injuries constituted “... bodily injury to [a] person caused by or arising out of the use of [a] motor vehicle...” within the meaning of s 54(1)(b) of the Motor Traffic Act and within the meaning of that phrase in the statutory third party policy issued by IAL to the employer under that Act in respect of the truck driven by Mr Van Den Dungen. In the event that the employer was so liable and in the event that Mr Van Den Dungen’s injuries fell within s 54(1)(b) of the Act, then IAL was bound to indemnify the employer and the relevant liability would be covered under both the workers compensation policy issued by Allianz and under the third party policy issued by IAL. The principles of double insurance would apply and Allianz would be entitled to the relief which it claims. IAL contended that Mr Van Den Dungen’s injuries were not caused by a motor vehicle and did not arise out of the use of a motor vehicle.
11. Counsel for IAL amplified his contention in respect of issue (b) described at [10] above by further submitting that the injuries which Mr Van Den Dungen sustained were not caused by, and did not arise out of the use of, Mr Van Den Dungen’s truck because:
(a) Mr Van Den Dungen was not an active participant in the loading process at the time he was injured; and
(b) The vehicle itself, being stationary with its engine not operating at the time Mr Van Den Dungen sustained his injuries, was not being used in any mechanical sense. It was nothing more than a passive vessel throughout the loading process.
12. Thus, the resolution of the present proceedings involves the following considerations:
(a) A determination as to the precise circumstances in which Mr Van Den Dungen was injured;
(b) The correct interpretation of s 54(1)(b) of the Motor Traffic Act; and
(c) The application of s 54(1)(b) to the facts as determined.
Consideration and Decision
The Facts
13. The only witness called at the hearing was Mr Van Den Dungen. On the evidence tendered before me, four other persons may have been able to cast light upon the relevant events. They were Mr Remo Lopilato (also known as Ray Lopilato) who is one of the principals of the employer. Mr Lopilato was standing near Mr Van Den Dungen when Mr Van Den Dungen was injured and was in a position to observe what had happened. Another was Mr Phillip Robinson, the son of John Robinson. Mr Phillip Robinson was also standing near Mr Van Den Dungen when the accident occurred and was also in a position to observe what happened. A third person, presently unidentified but known as a representative of The Canberra Times, was in a similar position to the other two gentlemen. The fourth person who may have been able to assist was Mr John Robinson, the bobcat operator and the second defendant in proceeding SC 364 of 2000.
14. Mr Van Den Dungen testified that:
(a) As at April 1996, he had been employed by the employer for approximately three and a half years. He was employed as a driver. His duties involved driving a Mitsubishi bogie tipper truck and using that truck as directed by the employer. Mr Van Den Dungen’s truck had two sets of wheels located towards the rear of the truck and one set of wheels under the cab.
(b) On the day in question, he was instructed to drive his truck to the site and to make that truck available to be filled with debris from the site. He was instructed to drive his truck, when fully laden, to a tip some distance away, to dump the load at the tip and to return to the site until no longer required. He was instructed to pick up a load of soil on each return journey. That soil was to be dumped at the site in order to enable a garden to be constructed there in place of what had once been a car park. The car park had an asphalt base and concrete kerbing.
(c) On the day in question, prior to the accident, Mr Van Den Dungen had made two or three trips to the site. Shortly before he was injured, the clean up at the site had progressed to the stage where the last items of debris to be removed from the site were being loaded onto his truck. His truck was parked in the front car park at this time. It was stationary with its engine off. Mr Van Den Dungen was the person who had parked his truck there.
(d) During some of the time which he spent at the site on the day in question, Mr Van Den Dungen’s truck had been loaded by a front end loader being operated by Mr Lopilato and by the bobcat being operated by Mr Robinson. The front end loader loaded material over the driver’s side of the truck. The bobcat loaded material by approaching the truck from the rear and emptying its bucket into the rear of the truck. When emptying its bucket, the bobcat protruded approximately 30–50 cm into the back of the truck. At no time did the bobcat load the truck over the side of the truck. Mr Van Den Dungen was not involved in the operation of either the front end loader or the bobcat. He did not direct the operators of either of those machines. He did not supervise the loading. All he did was observe the loading process.
(e) Shortly before Mr Van Den Dungen was injured, Mr Lopilato had ceased using the front end loader. The only machinery in operation at the time Mr Van Den Dungen was injured was the bobcat. The bobcat had a three-way bucket. It could open in the centre; tip from the front; and, using a blade, push rubble up and into the truck from the rear.
(f) Immediately before he was injured, Mr Van Den Dungen was standing on the driver’s side of his truck at a point which was more or less adjacent to the forward set of wheels in the bogie configuration at the rear of the truck. His right arm was leaning against a small ladder located at about that point on the driver’s side of the truck. He had his back to the side of the truck. Mr Ray Lopilato was standing on the same side of the truck but slightly away from it. He was near Mr Van Den Dungen. The other two gentlemen, Mr Phillip Robinson and the representative from The Canberra Times, were nearby. They were both on the same side of the truck as Mr Van Den Dungen. Mr Van Den Dungen recalled that, immediately before he was injured, some of the debris which had already been loaded onto his truck had been stacked to a height which was above the height of the side panels of the truck near to the point where he was standing.
(g) Suddenly, and without warning, Mr Van Den Dungen heard a clang and a bang and the next thing that he remembered was that he was some distance away from the truck on his knees. Next to him was a piece of L-shaped concrete kerbing. Mr Van Den Dungen said that, when he heard the clang and the bang, it sounded like something was sliding down the side panels of the truck near him. He said that the object which hit him hit the side of the truck before striking him. He did not see where the kerbing came from.
(h) When he regained his composure, Mr Van Den Dungen noticed, before he left the site, that his truck had scratch marks down the side panel nearest to the point where he had been standing. He said that those scratches had removed some of the paint from the side panel of his truck at that point.
15. The evidence was that the material which was being loaded onto Mr Van Den Dungen’s truck comprised concrete kerbing, road base, tree roots and cuttings and other vegetation.
16. Counsel for IAL submitted that there were various possibilities as to what had happened. One possibility suggested by Counsel for IAL was that the bobcat had emptied its load directly onto Mr Van Den Dungen and that the clang and bang which Mr Van Den Dungen had heard immediately before being struck was the movement of the bucket on the bobcat. Another possibility suggested by Counsel was that certain material had been deposited into the rear of the truck and then rolled out of the truck and struck Mr Van Den Dungen. Counsel did not specify whether, under this scenario, the kerbing which struck Mr Van Den Dungen had rolled out of the back of the truck or had fallen over the side of the truck. A third possibility was that, during the process of loading being undertaken by the bobcat at the rear of Mr Van Den Dungen’s truck, some material located around the middle of the truck near to the point where Mr Van Den Dungen was standing was dislodged and fell over the side of the truck striking the side of the truck on the way down and then hitting Mr Van Den Dungen. Counsel for IAL accepted that this third explanation of what happened was plausible although he pressed the first two theories described above as both being more likely than this last theory.
17. Given that the bobcat was loading from the rear and was only capable of depositing material to a length of approximately 30–50 cm from the rear of the truck into the truck, I do not think that the material that hit Mr Van Den Dungen came directly from the bobcat. Further, I do not see how material rolling out the back of the truck could have struck Mr Van Den Dungen in the way that he describes he was struck. Nor do I think that material fell over the side of the truck in the way generally submitted by Counsel as part of his second theory. The most plausible and most likely explanation for what occurred was that, during the process of loading from the rear, the bobcat dislodged some material which was located around the centre of the truck but above the height of the side panel and that that material fell from that position, bumped the side of the truck on the way down and struck Mr Van Den Dungen.
18. I find that this is what occurred.
19. I do not see any reason to doubt any of Mr Van Den Dungen’s evidence and I accept it in its entirety. Whilst it is true that he was not able to give evidence which went as far as describing the chain of events which I have found occurred, nonetheless his evidence is consistent with matters having occurred as I have found. Mr Lopilato had finished his work and the front end loader was not involved. The bobcat was approaching Mr Van Den Dungen’s truck from the rear and could only deposit material for a short distance from the back of the tray. Some material which had been loaded into the truck was piled up around the middle of the truck above the top of the side panel. All of these matters were the subject of direct evidence from Mr Van Den Dungen and no evidence was adduced to contradict him. In particular, none of the other persons who might have been able to cast light on what happened was called as a witness.
20. It was also clear from the evidence and, I think, agreed between the parties, that the truck was stationary at the time Mr Van Den Dungen was injured, that the engine of the truck was turned off at that time and that Mr Van Den Dungen had not been involved in any way in loading the truck with debris from the site. The loading process had been undertaken entirely by Mr Robinson and Mr Lopilato in the manner which I have described.
Decision
21. The Motor Traffic Act was repealed on 1 March 2000.
22. As at April 1996, that Act made it an offence for a person to use or to allow to be used a motor vehicle on a public street in the Australian Capital Territory unless there was in force in relation to the use of that vehicle by that person a third party policy within the meaning of that Act (s 51(1) of the Motor Traffic Act).
23. In addition, s 52(1) of the Motor Traffic Act required that, as a condition of registration of a motor vehicle in the Australian Capital Territory, the owner produce to the Registrar evidence that, for the period of registration, a third party policy would exist in respect of the relevant vehicle.
24. A third-party policy is defined in the Act to mean a policy of insurance which complies with Pt 5 – Insurance of the Act.
25. As at April 1996, s 54(1)(b) of the Motor Traffic Act provided:
Policies of insurance54.(1) In order to comply with the requirements of this Part, a third-party policy—
...
(b) shall, where the policy is issued in relation to the use of a particular motor vehicle, insure the owner of the motor vehicle mentioned in the policy and any other person who at any time drives the motor vehicle, whether with or without the authority of the owner, jointly and each of them severally, against all liability incurred by that owner and that person jointly, or by either of them severally, in respect of the death of, or bodily injury to, any person caused by or arising out of the use of the motor vehicle in any part of the Commonwealth;
26. At that time, s 54(1)(d) of that Act provided that the statutory third party policy required to be effected pursuant to s 54(1)(b) should be in the prescribed form.
27. It was common ground at the trial that Mr Van Den Dungen’s truck was a motor vehicle within the meaning of the Motor Traffic Act (see the definition of motor vehicle in s 4(1) of that Act), that the employer was the owner of that truck (as defined in s 4(1) of that Act) and that there was in existence a third party policy in favour of the employer which provided cover in respect of the use of that truck. The relevant cover afforded to the employer under that policy was indemnity:
... against all liability incurred by [the employer] ... in respect of ... bodily injury to ... any person caused by or arising out of the use of [Mr Van Den Dungen’s truck] in any part of the Commonwealth of Australia.
(See s 54(1)(b) and the prescribed form of statutory third party policy.)
28. The critical question, therefore, in the present case, is whether the injuries suffered by Mr Van Den Dungen are aptly described as bodily injury caused by or arising out of the use of Mr Van Den Dungen’s truck. His injuries undoubtedly fell within the concept of bodily injury when used in the relevant phrase. But, were they caused by or did they arise out of the use of Mr Van Den Dungen’s truck?
29. In Fawcett v BHP By-Products Pty Ltd [1960] HCA 59; (1960) 104 CLR 80, the High Court considered whether damages awarded to the operator of a Caldwell mechanical loader in respect of injuries suffered by that operator when that loader was being used in the resurfacing of a road were indemnified under the operator’s employer’s motor vehicle third party policy.
30. At 85, Menzies J described the Caldwell mechanical loader. He said:
A Caldwell mechanical loader is a tractor upon which there has been mounted a bucket or grab which can pick up material from a heap in front of the tractor, travel along rails above the head of the operator to the back of the tractor and deposit its load there, usually in a truck or some other container, for removal. When being used to load in this manner, the vehicle moves forward toward the heap and backward to the truck, as required.
31. The High Court held that injuries suffered by the operator of the loader in the course of its use in resurfacing the road were caused by or arose out of the use of a motor vehicle (viz the loader).
32. Menzies J (with whom Dixon CJ and Kitto J agreed) delivered one of two sets of Reasons for Judgment. The other was delivered by Windeyer J. McTiernan J agreed with the trial judge.
33. The following propositions can be gleaned from the judgment of Menzies J:
(a) Indemnity against all liability in respect of the bodily injury to any person (including the driver or operator) caused by or arising out of the use of a motor vehicle cannot be confined to liability arising while the vehicle is actually in motion (at 87);
(b) Such indemnity covers liability connected with the travelling of the motor vehicle eg its being left upon a road by night without adequate lights (at 87);
(c) The use of an item of machinery such as the Caldwell mechanical loader under consideration in Fawcett in its capacity as a loader does not take that use outside the terms of the relevant statutory indemnity (at 87);
(d) The indemnity provided by the statutory policy is not 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 (at 87); and
(e) The proper course in construing the relevant phrase is to read the actual language as relating only to bodily injury that is caused by or arises out of what can fairly be described as the use of the motor vehicle itself (at 88).
34. Further, at 88, Menzies J said:
Once, therefore, it is determined that a Caldwell mechanical loader is, as a whole, a motor vehicle, the Act requires a policy of insurance that covers its use as a loader. In my opinion, therefore, the appellant does not establish his first proposition—that is, that the Act only requires a policy covering the use of a Caldwell mechanical loader as a vehicle that moves and not as a vehicle that loads because its use as a loader is part of its use as a motor vehicle.
35. Windeyer J held that the relevant policy indemnified the employer against all liabilities caused by or arising out of the use of the loader as a mechanical loader (at 90). His Honour held that the question thrown up for decision in Fawcett was a question of fact (at 91).
36. In Government Insurance Office of New South Wales v RJ Green & Lloyd Pty Ltd [1966] HCA 6; (1966) 114 CLR 437, the High Court again looked at the phrase bodily injury caused by or arising out of the use of a motor vehicle.
37. In RJ Green & Lloyd Pty Ltd, a workman was injured when several workmen employed by the insured were loading a hoist onto a truck. The hoist was being loaded onto the truck so that it could be moved from one scene of the employer’s building operations to another. In the course of loading the hoist onto the truck by means of a rope and planks, the hoist slid off the planks and injured one of the workmen who was engaged in the loading process. The High Court held that the workman suffered injuries which were caused by or arose out of the use of the truck as a motor vehicle.
38. In that case, Barwick CJ held that the indemnity provided by the statutory third party policy was not limited to the use of a motor vehicle in or upon public thoroughfares or to its use in movements (at 441).
39. At 441–443, his Honour said:
... and that in choosing the expression “the use of the motor vehicle” as the basis for the requirement of a policy of insurance and for the delimitation of the area of the indemnity to be obtained, the Act indicates an intention to cover a very wide field, a field more extensive than what might be called the traffic use of the motor vehicle.I have no difficulty in the present case in concluding that the insured motor vehicle was being “used” during the operation of placing this hoist upon its table-top. The vehicle had been brought to the place where the hoist was in order to transport it thence to another place; the positioning of the hoist upon the motor vehicle was an indispensable step in that operation. At the very lowest, the table-top of the truck was being used as an integral and significant part of the truck to receive the load for the purpose of its conveyance. Indeed, part of the lorry was in fact being used as a mechanical aid to draw the hoist on to the table-top, though no part of the vehicle was moving in the course of that operation.
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. In my opinion, the relevant use of the vehicle cannot be confined to the periods it is in motion, or its parts moving in some operation. It may be in use though stationary.
I have also found little difficulty in concluding that upon the particular facts of the case the injury to the workman did arise out of the relevant use of the motor vehicle, and I am well content to hold that the Supreme Court was right in finding a verdict for the respondent in the action. The hoist fell as it was being placed in position on the truck. The operation of raising the planks, which being done carelessly or inexpertly, was the immediate cause of the workman's injury, was part of the very act of placing the hoist upon the table-top of the lorry. The height to which the planks were raised, a circumstance inextricably involved in the result, was determined by the physical characteristics of the lorry and of the hoist.
But I have a good deal of difficulty in expressing as a matter of law with any degree of satisfaction and certainty the area which is covered by the expression “caused by or arising out of the use of the motor vehicle”, as used in the Act and the policy. The phrase “arising out of ” is not here found in the same collocation as it is in workers’ compensation legislation, where it is in juxtaposition to a temporal expression. In that sphere the words “arising out of ” clearly point to a causal relationship. The words “arising out of ” in s 10 of the Act and in the indemnity clause of the policy are not merely, if at all, explicative of the words “caused by”; they are really used in contrast to them; and in the total expression are extensive in their import. Bearing in mind the general purpose of the Act I think 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”. It may be that an association of the injury with the use of the vehicle while it cannot be said that that use was causally related to the injury may yet be enough to satisfy the expression “arise out of” as used in the Act and in the policy.
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. The general observation of Jacobs J in Vaux v Law Union and Rock Insurance Co. Ltd. [(1960) 78 WN (NSW) 588] is not, in my respectful opinion, expressed as a general proposition, supportable. But in saying so much I cast no doubt on the propriety of the conclusion in fact to which his Honour came in that case.
40. At 444, after deciding not to attempt an exposition of the phrase which might be universally applicable, his Honour said:
After consideration, I have come to think it better to endeavour to apply the statutory expression as it is to circumstances as they arise, bearing in mind, as my brother Menzies has pointed out in Fawcett v. B.H.P. By-Products Pty. Ltd. [(1960) [1960] HCA 59; 104 CLR 80, at p 87], that in this field one should not be seeking subtleties but rather applying broad and practical conceptions.
41. McTiernan and Taylor JJ agreed with Barwick CJ.
42. Menzies J agreed in the result. Windeyer J wrote a separate judgment. At 447, Windeyer J held that the kind of use of a motor vehicle that is covered by the policy is driving it or doing something to it or with it that is incidental to its normal use as a motor vehicle. His Honour declined to paraphrase the statutory expression of indemnity any further. His Honour held that the nature of the particular vehicle must be considered in every case.
43. At 447, his Honour said:
The policy covers a vehicle of a kind described when used for its ordinary purposes. In the present case the vehicle, a motor truck, was classified as a “goods vehicle”. The loading of a vehicle designed to be used, and ordinarily used, for the carriage of goods is a necessary element in its ordinary use. Loading it is incidental to the use of it in the normal way. 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.But the question that arises in cases such as this is not answered simply by asking was the vehicle being used. 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. But it is not necessary for the solution of this case to go into the wordy jungle that surrounds the lawyer’s concept of causation.
44. In Commercial Building Centre Pty Ltd v NRMA Insurance Ltd [2004] ACTCA 3, the Court of Appeal considered the phrase “...bodily injury to any person caused by or arising out of the use of a motor vehicle” in s 54(1) of the Motor Traffic Act. At [3], the Court extracted par 19 of an agreed statement of facts as follows:
So far as presently relevant, that statement of facts provided:
45. The injured workman (Mr Delaney) was the middle man in a line of three workmen involved in the loading process.
46. At [9]–[11], the Court said:
47. At [12], the Court referred to the judgment of Windeyer J in RJ Green & Lloyd Pty Ltd at 447. At [14], the Court said:
48. At [17]–[19], the Court said:
49. I do not need to consider whether Commercial Building Centre Pty Ltd was correctly decided. Both the trial judge and the Court of Appeal ultimately took the view that, because Mr Delaney was not the person who immediately placed the load into the truck, the injury which he suffered was not caused by the use of the truck as a motor vehicle nor did it arise out of the use of the truck as a motor vehicle. The task being undertaken by the injured workman was not sufficiently connected with the loading of the truck to be characterised as such use.
50. In the present case, the use to which Mr Van Den Dungen’s truck would ordinarily be put was as a tipper truck. Tipper trucks are utilised to carry loads from one place to another. An integral part of a tipper truck’s ordinary use is the loading of material onto the truck and the unloading or dumping of material from the truck. Ordinarily, material is loaded onto the truck at one location and transported to another location where it is dumped. In order for these activities to take place, the tipper truck will ordinarily be parked at the location where it is loaded, then moved to the location where the load is to be dumped and ultimately parked while the load is dumped.
51. The observations of the High Court in RJ Green & Lloyd Pty Ltd and in Fawcett, in my view, apply to the circumstances of the present case. Mr Van Den Dungen was injured when his truck was being loaded and the loading activity which was taking place when he was injured was an ordinary incident of the use of Mr Van Den Dungen’s tipper truck. The truck did not need to be in motion and Mr Van Den Dungen did not need to be involved in the loading activity. Further, I think that it does not matter whether Mr Van Den Dungen was injured in the circumstances which I have found at [17]–[19] above or whether the concrete kerbing which struck him fell directly from the bobcat or in some other way involving the use of the bobcat in proximity to Mr Van Den Dungen’s truck. It seems to me that what occurred was caused by or arose out of the loading of Mr Van Den Dungen’s truck with debris from the site. That activity of loading Mr Van Den Dungen’s truck for the purpose of transporting the debris on that truck to a tip was an ordinary use of that truck—a use which was contemplated under the relevant statutory third party policy.
52. For these reasons, the employer was indemnified under the statutory compulsory third party policy issued by IAL against liability to Mr Van Den Dungen for damages for the injuries which he suffered at the site on 8 April 1996.
53. Accordingly, both the workers compensation policy issued by Allianz and the motor vehicle third party policy issued by IAL were engaged in the circumstances of the present case and the principles of double insurance apply (as to which see Albion Insurance Co Ltd v Government Insurance Office (NSW) [1969] HCA 55; (1969) 121 CLR 342 and Commercial and General Insurance Co Ltd v Government Insurance Office (NSW) [1973] HCA 51; (1973) 129 CLR 374).
54. There will be a verdict and judgment in favour of Allianz in the amount of $172,081.03 calculated as follows:
|
(a) |
50% of the judgment |
$112,500.00 |
|
(b) |
50% of the amount of costs agreed in SC 364 of 2000 |
$37,710.51 |
|
(c) |
Interest at 9% pa on $112,500.00 for the period from 1 July 2009 to 14 February 2011 (1 year and 229 days) |
$16,477.40 |
|
(d) |
Interest at 9% pa on $37,710.51 for the period from 14 July 2009 to 14 February 2011 (1 year and 215 days) |
$5,393.12 |
|
TOTAL |
$172,081.03 |
55. Costs should follow the event.
I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Foster.
Associate:
Date: 14 February 2011
Counsel for the plaintiff: Mr GA Stretton SC
Solicitor for the plaintiff: Mallesons Stephen Jaques
Counsel for the defendant: Mr R Clynes
Solicitor for the defendant: Sparke Helmore
Date of hearing: 19 July 2010
Date of judgment: 14 February 2011
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URL: http://www.austlii.edu.au/au/cases/act/ACTSC/2011/19.html