Technical Products Pty Ltd v State Government Insurance Office (Qld) [1989] HCA 24; (1989) 167 CLR 45 (2 May 1989)

HIGH COURT OF AUSTRALIA

TECHNICAL PRODUCTS PTY LIMITED v. STATE GOVERNMENT INSURANCE OFFICE (QUEENSLAND) [1989] HCA 24; (1989) 167 CLR 45
F.C. 89/020

Insurance

High Court of Australia
Brennan(1), Deane(1), Dawson(2), Toohey(3) and Gaudron(1) JJ.

CATCHWORDS

Insurance - Third party liability - Extent of cover - Employee injured while loading motor vehicle from unsafe forklift - Employer liable for damages - Whether liability "in respect of . . . motor vehicle" - Motor Vehicles Insurance Act 1936 (Q.),s. 3(1).

HEARING

1989, February 7; May 2. 2:5:1989
APPEAL from the Supreme Court of Queensland.

DECISION

BRENNAN, DEANE AND GAUDRON JJ. The judgment of Toohey J. adequately and concisely sets out the background facts. His Honour's judgment also sets out the critical statutory provision, namely, s.3(1) of the Motor Vehicles Insurance Act 1936 (Q.) ("the Act"). We turn at once to a consideration of the issues raised by the appeal.

2. The appellant's primary submission is that the Full Court of the Supreme Court of Queensland has given undue significance to the words "in respect of such motor vehicle" in s.3(1) of the Act. The appellant argues that those words do not represent an independent limitation of the scope of the mandatory cover required by that sub-section. If the requirement in s.3(1) that the injury be "caused by, through, or in connection with" the particular motor vehicle is satisfied, the liability by way of damages for that injury will, so the appellant submits, be liability "in respect of" that motor vehicle for the purposes of the sub-section.

3. The construction of s.3(1) for which the appellant contends derives some support from the sub-section's statutory context. Thus, the Act's title states that it is to require the owners of motor vehicles to insure against their liability to pay compensation "on Account of Injuries to Persons caused by, through, or in connection with such Motor Vehicles", without mentioning any superimposed qualification that the relevant liability also be "in respect of" the relevant vehicle. Some substantive provisions (see, e.g., ss.4A and 4B) refer to the requirement that the relevant injury be "caused by, through, or in connection with" the relevant motor vehicle without any such further qualification.

4. On the other hand, there are substantial arguments which militate against the appellant's construction of s.3(1). As Campbell C.J. pointed out in Boath v. Central Queensland Meat Export Co. Pty. Ltd. (1986) 1 Qd R 139, at p 143, such a construction effectively treats the words "in respect of such motor vehicle" as redundant. More important, a requirement that liability in damages for an injury be "in respect of" a motor vehicle is different from a requirement that the injury be "caused by, through, or in connection with" the motor vehicle. The first focuses upon the relationship between the relevant liability in damages and the vehicle. The second looks only to the relationship between the injury itself and the vehicle.

5. 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 s.3(1) 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. The point is well made in the judgment of Connolly J. (with whom Andrews C.J. and Thomas J. concurred) in the Full Court of the Supreme Court in the present case:
"If the liability of the respondent in this
case is to be described as being in respect of the
trailer, there must, in my opinion, be more than
the mere presence of the trailer at the scene. As
McPherson J. observed in Tonga v. John Holland
(Construction) Pty. Ltd. & Ors (Appeal No. 16 of
1987, 3rd July, 1987, unreported), 'Stevens v.
Nudd (1978) QdR 96 and Boath v. Central
Queensland Meat Export Co. Pty. Ltd. (1986) 1 Qd
R 139 may be taken as establishing that it is not
sufficient, in order to satisfy the requirement
that the person entitled to the benefit of the
cover be 'legally liable ... in respect of such
motor vehicle', that there be no more than a
connexion or relation in time or sequence between
the motor vehicle and events which in law give rise
to the liability. What is required is that there
be a relationship between the motor vehicle and the
very act or omission which gives rise to that
liability.'"
vehicle will ordinarily not exist where the liability is that of a person who is unconnected with that vehicle. The point can be illustrated by example. If, for example, a passenger in a motor vehicle is injured when the driver of the vehicle brakes suddenly to avoid another vehicle whose brakes have failed because of a mechanic's negligence in servicing them, the passenger's injuries can properly be seen as caused "in connection with" each of the two vehicles involved. Any liability of the mechanic in damages for the passenger's injuries would be a liability "in respect of" the second vehicle whose brakes he had negligently serviced. The mechanic's liability could not, however, rationally be seen as a liability "in respect of" the first vehicle with which he had no connection at all.

6. It follows that the appellant's primary argument should, in our view, be rejected. The effect of the words "in respect of such motor vehicle" in s.3(1) is to add to the requirement that the relevant accidental bodily injury be "caused by, through, or in connection with" the motor vehicle, the further requirement that the circumstances giving rise to the relevant legal liability by way of damages for that injury show a discernible and rational link between the liability and the particular vehicle. In most cases where the injury itself was "caused by, through, or in connection with" the relevant vehicle that further requirement will, no doubt, be satisfied. There will, however, be cases in which the superimposed requirement will be critical in the sense that, notwithstanding that the injury was "caused by, through, or in connection with" the insured motor vehicle, there is no discernible rational relationship between the relevant legal liability for the injury and that vehicle. There remains for consideration the question whether the present is such a case.

7. The appellant submits that, even accepting that the words "liable ... in respect of such motor vehicle" constitute a distinct and significant requirement, the Full Court was mistaken in holding that the requirement was not satisfied in the particular circumstances of the present case. In essence, the question raised by that submission is whether the appellant employer's liability for injury sustained by his employee which was caused by the employer's negligence in failing to provide a safe system of work in relation to the use of a fork-lift to load bags of cheese salt into a stationary receptacle (in the form of a container attached to a stationary trailer) was, for the purposes of s.3(1), liability "in respect of" the trailer. The Full Court came to the conclusion that, in all the circumstances, that question must be answered in the negative. We agree with that conclusion. Even accepting that the trailer and the container are properly to be regarded as one receptacle, the employer's liability cannot, in the circumstances, properly be described as a liability with respect to that receptacle. To the extent that the employer's liability was a liability "in respect of" any vehicle, it was a liability with respect to the unregistered fork-lift. There is nothing in the present case which would justify a conclusion that the trailer and container had any involvement in the employee's accident beyond their passive presence as the receptacle into which the bags were being loaded. It is important to note that there was no permanent relationship between trailer and fork-lift of a type which could lead to the conclusion that the trailer and fork-lift were elements of a single unit of integrated equipment.

8. Although, by its notice of appeal to the Full Court, the appellant accepted that the employee's injury was caused "by, through, or in connection with" the trailer, no concession was made that the employer's liability was "in respect of" the trailer. It is unnecessary to consider whether the concession was rightly made, for the question whether the employer's liability was "in respect of" the trailer must be answered by reference to the evidence. As the evidence stood, there was no relevant connection between the employer's liability and the trailer. The appeal must therefore be dismissed.

DAWSON J. This case concerns the interpretation of s.3(1) of the Motor Vehicles Insurance Act 1936 (Q.) which provides for the compulsory insurance of the owners of motor vehicles. The sub-section, so far as is relevant, provided at the material time:

"... the owner of any motor vehicle shall at all
times ... indemnify himself and all other persons
and keep himself and all other persons indemnified
by a contract of insurance with the State
Government Insurance Office (Queensland) or with
some licensed insurer against all sums for which he
or his estate or any such other person or his
estate shall become legally liable by way of
damages in respect of such motor vehicle for
accidental bodily injury ... where such injury is
caused by, through, or in connection with such
motor vehicle." (my emphasis)

Under s.3(3), every contract of insurance under the Act shall comply and is deemed to comply with the relevant requirements of the Act.

2. The question is whether the words "legally liable by way of damages in respect of such motor vehicle" confine the scope of the indemnity for which the sub-section provides by imposing a limitation in addition to the requirement that injury be caused "by, through, or in connection with such motor vehicle."

3. The question arises in this way. The plaintiff in the action, Ian Stuart Hart, was employed as a factory hand by the defendant, Technical Products Pty. Ltd. ("Technical Products"). On 13 August 1981 he was seriously injured in the course of his employment when he fell from a pallet, which was supported by the tines of a forklift, on to a concrete floor about seven feet below. At the time the plaintiff fell, he was assisting in the loading of bags of salt from the forklift into a large container which was mounted on a trailer. There were bags of salt stacked on the pallet upon which the plaintiff was standing and he was engaged in passing these to a fellow employee who was inside the container. The registered owner of the trailer was Brisbane Carrying Company Pty. Ltd. which, pursuant to the Act, maintained insurance cover over it. The forklift was not, and was not required to be, covered by insurance.

4. The defendant employer was found to be negligent in failing to provide a safe system of work and the plaintiff was awarded substantial damages. Neither liability nor the quantum of damages is now disputed. The only remaining question is whether the State Government Insurance Office, which was joined as a third party, is liable to indemnify the employer under the insurance policy taken out under the Motor Vehicles Insurance Act by the owner of the trailer. It is apparent that the present argument is in effect between two insurers, the State Government Insurance Office and the insurer under the Workers' Compensation Act 1916 (Q.). Cf. Workers' Compensation Board of Queensland v. Technical Products Pty. Ltd. [1988] HCA 49; (1988) 62 ALJR 561; 81 ALR 260.

5. It was never a question, or at least it was not before us, that the injuries sustained by the plaintiff were caused in connection with the trailer. It was not, therefore, necessary to examine how close or remote the connection. But, it was said on behalf of the employer, the words "in respect of" are words of the widest import and any liability in damages for accidental bodily injury caused in connection with a motor vehicle is a liability by way of damages in respect of such vehicle within the meaning of s.3(1).

6. It is true that the words "in respect of" may have a wide meaning but it is not correct to say that they extend to any relationship, however tenuous: see Workers' Compensation Board of Queensland v. Technical Products Pty. Ltd. at p 566; p 267 of ALR. The words take their colour from the context in which they are found. For that reason we were referred to the long title of the Motor Vehicles Insurance Act and to ss.4A and 4B, each of which refers in one way or another to liability for injuries to persons caused by, through, or in connection with a motor vehicle, without the additional qualification that the liability should be in respect of a motor vehicle.

7. But to read s.3(1) as referring simply to liability for injuries caused by, through, or in connection with a motor vehicle is to disregard entirely the explicit requirement that, to fall within the section, the liability must also be by way of damages in respect of a motor vehicle. The words "in respect of" require some material connection between the two matters referred to. Those matters are liability for damages for accidental injury on the one hand and, on the other, a motor vehicle. Having regard to the immediate context of s.3(1), a merely coincidental or extraneous connection between those two things can hardly be sufficient and the wider context of the Act takes the matter no further.

8. Stevens v. Nudd (1978) Qd R 96 provides a good example of what I am saying. In that case the plaintiff sued for damages for injuries which he sustained when the defendant's dog ran into the path of his, the plaintiff's, motor cycle. The plaintiff's injuries in that case were caused in connection with the motor cycle. Nevertheless it was held that the potential liability of the defendant was not "in respect of" a motor vehicle. In the event, the defendant was held in that case not to be in breach of any duty to the plaintiff. A similar case is Boath v. Central Queensland Meat Export Co. Pty. Ltd. (1986) 1 Qd R 139. There the plaintiff was driving his truck across a bridge situated on the defendant's property when the bridge collapsed and the plaintiff suffered injuries. The defendant was found to be negligent but its liability to the plaintiff was held not to be a liability "in respect of" the plaintiff's truck within the meaning of s.3(1) of the Motor Vehicles Insurance Act. As Campbell C.J. observed, at p 144:

"meaning must be attributed to the words 'in
respect of such motor vehicle' and the plain
meaning of the words leads to them having a
significant limiting effect on the otherwise
extreme width or ambit of the subsection."

In Tonga v. John Holland (Construction) Pty. Ltd. (1988) 2 Qd R 587, at pp 588-589, McPherson J. said of Stevens v. Nudd and Boath v. Central Queensland Meat Export Co. Pty. Ltd.:

"Those two cases may be taken as establishing that
it is not sufficient, in order to satisfy the
requirement that the person entitled to the benefit
of the cover be 'legally liable ... in respect of
such motor vehicle', that there be no more than a
connection or relation in time or sequence between
the motor vehicle and events which in law give rise
to the liability. What is required is that there
be a relationship between the motor vehicle and the
very act or omission which gives rise to that
liability. The conception is in some respects a
difficult one to apply, but in the two decisions
mentioned it was justified by the requirement in
s.3(1) that the legal liability be 'in respect of'
the motor vehicle. Thus, in Stevens v. Nudd the
negligence imposing the liability was held to be
confined to controlling the dog on the footpath and
not to extend to the motor cyclist on the road; and
in Boath v. C.O.M.C. (sic) it was held to be
confined to the state or condition of the bridge
and not to involve the vehicle that drove on to
it."

9. In the present case the liability of the defendant to its employee arose from its breach of duty in failing to provide a safe system of work. The nature of that failure may be seen from the particulars of negligence alleged against the employer. They refer to the way in which the employee was required to work in hazardous circumstances approximately seven feet above the ground upon a platform which was unfenced and otherwise unsafe. No aspect of the trailer, or of the trailer considered as one with the container which it carried, was said to have contributed to the liability of the employer. The presence of the trailer explained the use being made of the forklift, but it was the way in which the forklift was being used which gave rise to liability on the part of the employer, not any use being made of the trailer. That liability was, therefore, not in respect of the trailer and, for that reason, not in respect of a motor vehicle within the meaning of s.3(1).

10. I would dismiss the appeal.

TOOHEY J. In October 1987 a judgment was obtained against the appellant by its employee. By this appeal the appellant seeks to be indemnified by the respondent against that judgment. The entitlement to an indemnity is said to derive from s.3(1) of the Motor Vehicles Insurance Act 1936 (Q.) ("the Act"), the relevant part of which read:

" 3.(1) ... the owner of any motor vehicle shall
at all times during the registration ... of such
motor vehicle indemnify himself and all other
persons and keep himself and all other persons
indemnified by a contract of insurance with the
State Government Insurance Office (Queensland)
... against all sums for which he ... or any such
other person ... shall become legally liable by
way of damages in respect of such motor vehicle
for accidental bodily injury (fatal or non-fatal)
to any person ... in any State or Territory of
the Commonwealth of Australia where such injury
is caused by, through, or in connection with such
motor vehicle."

2. In August 1981 the employee, Ian Stuart Hart, was loading a trailer. He was working on top of a pallet which was stacked with bags of salt and which was being carried on a forklift. Mr. Hart was passing bags to another employee who was inside a large container mounted on the trailer. Mr. Hart fell from the pallet to the concrete floor below and sustained serious injuries. The appellant was held liable in negligence to Mr. Hart by reason of an unsafe system that required him to work in an elevated position on the surface of a platform which was slippery and uneven and where, as the trial judge found, there "was nothing to prevent a workman from falling over the side of the platform should he slip or trip or overbalance or be bumped" by another employee. The loading operation was under the control of the appellant.

3. The trailer was the subject of an insurance policy pursuant to s.3(1) of the Act; the forklift was not required to be registered and was not the subject of an insurance policy. The question for the Court is whether the appellant is entitled to look to the respondent, pursuant to s.3(1) of the Act, to indemnify it against its liability to Mr. Hart. The trial judge held that the appellant was so entitled; the Full Court held that it was not.

4. There is a question, both of interpretation and of construction, involved in regard to s.3(1). Essentially, it is the meaning of and relationship between the words "legally liable by way of damages in respect of such motor vehicle for accidental bodily injury" and the words "where such injury is caused by, through, or in connection with such motor vehicle". In particular, do the former words operate by way of limitation on the latter, as the respondent submits? Or is it enough, at least in the circumstances of the present case, that the injuries for which Mr. Hart recovered damages fall within the concluding words of the sub-section, as the appellant submits?

5. While the respondent did not formally concede in the courts below that Mr. Hart's injuries were caused by, through, or in connection with the trailer, it is apparent that the case was argued on the assumption that the injuries were so caused. It would not be right to say that the injuries were caused by the trailer or, I would think, through the trailer. It may be accepted that they were suffered in connection with the trailer in the sense that Mr. Hart was engaged in loading the trailer when he fell. It is true that, literally, he was engaged in loading a container but the container was secured to the trailer which was equipped for that purpose. Be that as it may, this Court must approach the matter on the footing that Mr. Hart's injuries were caused by, through, or in connection with the trailer. Counsel for the respondent acknowledged this to be so. Does it then follow that the appellant became legally liable by way of damages in respect of the trailer for those injuries? In the Full Court, Connolly J., with whom Andrews C.J. and Thomas J. agreed, put the matter this way:

"What must be established is liability in respect
of the insured vehicle. It is not sufficient
that the system of work in the course of which
the breach of duty occurs is related or, if it
matters, directly related to the loading of the
insured vehicle. In this case the insured
vehicle played no relevant part in the breach of
duty and its only involvement in the events which
constituted the breach of duty was its presence
at the scene. It was suggested that the trailer
and container were a composite unit and that I
would accept. The respondent's breach of duty
and therefore its liability were however not in
respect of this composite unit but in respect of
the unsafe state of the load on the forklift
seven feet above ground level where the plaintiff
was required to work in close proximity to
another employee similarly engaged and without
any protective sides or other restraints."

6. The matter is not free from difficulty but, in the end, I am of opinion that the Full Court erred in the conclusion it reached. Undoubtedly, the words "in respect of" have a wide meaning; equally, they take their meaning from the context in which they appear: Workers' Compensation Board of Queensland v. Technical Products Pty. Ltd. [1988] HCA 49; (1988) 62 ALJR 561, at p 566; [1988] HCA 49; 81 ALR 260, at p 267. The context here is a system of motor vehicle insurance, designed to indemnify the owner of a motor vehicle and all other persons against liability in damages for bodily injury when that liability relates to the motor vehicle. There is a guide to the scope of the legislation in the long title to the Act, which reads:

"An Act to Require the Owners of Motor Vehicles to
Insure against their Liability to Pay
Compensation on Account of Injuries to Persons
caused by, through, or in connection with such
Motor Vehicles ..."

7. It is not necessary that the motor vehicle is, at the relevant time, being used (as to the meaning of 'use' see Dickinson v. Motor Vehicle Insurance Trust [1987] HCA 49; (1987) 163 CLR 500 and the cases there cited). But there must be a nexus between the motor vehicle and the circumstances which subject the insured to legal liability to another. To put the matter that way is not to give the expression "in respect of" a wide or a narrow meaning; it is simply to require a nexus which makes it proper to say that the liability by way of damages is in respect of the motor vehicle, or to put it another way, that the liability is "for" that vehicle: see State Government Insurance Office (Qld.) v. Crittenden [1966] HCA 56; (1966) 117 CLR 412, at p 416.

8. It is unnecessary to go so far as to say that the words "in respect of such motor vehicle" have a "significant limiting effect on the otherwise extreme width or ambit of the subsection": see Boath v. Central Queensland Meat Export Co. Pty. Ltd. (1986) 1 Qd R 139, at p 144. On the other hand, the words are there and cannot be ignored. However, there is a danger in isolating what might be thought of as two limbs of s.3(1) and opposing one to the other. The sub-section must be read in its entirety. Where injury is caused by, through, or in connection with a motor vehicle, it will ordinarily be the case that the liability of the insured for damages for that injury will be in respect of the vehicle. Fire & All Risks Insurance Co. Ltd. v. Turner (1976) 50 ALJR 767; 10 ALR 94 is instructive in this regard. There, a passenger in a motor vehicle was injured through fragments of glass spattering him as the result of the windscreen being shattered when struck by a bullet from a rifle accidentally discharged by the owner of the vehicle as he was alighting. Jacobs J., with whom Gibbs and Murphy JJ. agreed, concluded that it was open on the evidence for Wanstall S.P.J. to hold that the injury was caused by, through, or in connection with the vehicle within s.3(1) of the Act. It is significant that no attention was paid to the words "in respect of such motor vehicle"; their application seems to have been taken for granted. Nevertheless, the earlier words in s.3(1) must be read with those that follow. Their purpose is to identify the liability in damages against which the owner of a motor vehicle or any other person is to be indemnified where injury is caused by, through, or in connection with the vehicle.

9. If there be no nexus between the circumstances giving rise to the liability and the motor vehicle, the owner of the motor vehicle or other persons cannot be said to have become legally liable by way of damages in respect of the motor vehicle for injuries sustained. Stevens v. Nudd (1978) Qd R 96 is perhaps an extreme example. There the owner of a dog, which ran onto the road where a motor-cyclist collided with it, was held not liable in negligence for the injuries sustained by the motor-cyclist. The Full Court held that the dog owner's potential liability was not "in respect of" the motorcycle but rather in relation to the control of the dog. It was therefore unnecessary for the respondent to take certain steps required under the regulations made pursuant to the Act.

10. In the present case the circumstance giving rise to liability on the part of the appellant was, as the primary judge found, the loading of the trailer. It is true that the negligence of the appellant lay in a system of work requiring Mr. Hart to load from a pallet on a forklift to a container. But to say that is only to identify the aspect of the loading operation wherein the negligence lay. It is not to the point to say that Mr. Hart may well have been loading a container on a ramp or the like when he was injured. Of course he may have been. But, as it happened, he was loading the insured trailer which the appellant had on hire. It is accepted that his injuries were caused by, through, or in connection with the trailer. It is then but a short step (and, I think, an inevitable one) to conclude that the appellant's liability for failing to provide a safe system for the loading of the trailer was a liability in respect of the trailer.

11. I would allow the appeal.

ORDER

Appeal dismissed with costs.