Inasmuch Community Inc v Bright & Anor [2006] NSWCA 99 (2 May 2006)

Last Updated: 3 May 2006

NEW SOUTH WALES COURT OF APPEAL

CITATION: INASMUCH COMMUNITY INC v BRIGHT & ANOR [2006] NSWCA 99



FILE NUMBER(S):
40240/2005

HEARING DATE(S): 07 February 2006

DECISION DATE: 02/05/2006

PARTIES:
Inasmuch Community Inc (Claimant)
Lorraine Bright (First Opponent)
GIO General Limited (Second Opponent

JUDGMENT OF: Mason P Beazley JA McColl JA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 20/04

LOWER COURT JUDICIAL OFFICER: McLoughlin DCJ

COUNSEL:
M. Elkaim SC (Claimant)
A.J. Stone (First Opponent)
D.J. Russell SC (Second Opponent)

SOLICITORS:
Abbott Tout (Claimant)
Nagle & McGuire (First Opponent)
Sparke Helmore (Second Opponent)

CATCHWORDS:
MOTOR ACCIDENT – application of Motor Accidents Compensation Act (NSW) 1999 – whether injury alleged is an “injury” under the Act – must satisfy temporal and causal requirements of the Act – proximate cause was negligence of claimant, not collision with motor vehicle pursuant to the Act – the Act does not apply
STATUTORY CONSTRUCTION – words and phrases – meaning of “injury” and “collision” under the Motor Accidents Compensation Act (NSW) 1999 – meaning must be determined having regard to the scope, objects and purpose of the Act – the definition of “injury” is to be given a restricted application in accordance with the legislative intention
ISSUE ESTOPPEL – notice of motion – strike out application – no issue estoppel arises

LEGISLATION CITED:
District Court Rules, Pt.9 r.17(i)(a), (c), Pt. 11A Div. 2 r.3(1)(a), (c), Pt.26 r.5AA
Motor Accident Insurance Act (Qld) 1994, s.5(1)
Motor Accidents Act (NSW) 1988
Motor Accidents Amendment Act (NSW) 1995
Motor Accidents Compensation Act (NSW) 1999, ss.3, 79, 92, 94, 108, 122

DECISION:
1. Leave to appeal granted
2. Appeal dismissed
3. Claimant directed to file Notice of Appeal in Registry and pay the applicable filing fee
4. Claimant to pay Opponents' costs of the Summons for Leave to Appeal and of the Appeal


JUDGMENT:


IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40240/2005

MASON P

BEAZLEY JA

McCOLL JA

2 May 2006

INASMUCH COMMUNITY INC V BRIGHT & ANOR


HEADNOTE

Facts
On 19 September 2003 the first opponent was inspecting second-hand goods offered for sale by the claimant, in an area used both for an Op-shop and for unloading goods. The rear door to a truck owned by the claimant had not been securely latched and, upon being blown shut by a gust of wind, struck the first opponent in the back.

The first opponent lodged a Statement of Claim alleging injury due to the negligence of the claimant, through its servant or agent, in failing to properly secure the door. The claimant sought to strike out or dismiss the Statement of Claim on the basis that the claim fell within the provisions of the Motor Accidents Compensation Act (NSW) 1999 (the MAC Act), as the injury was the “result of and [was] caused during...a collision...with the motor vehicle” pursuant to the definition of “injury” in s.3 of the MAC Act, and that the first opponent was thereby required to obtain a certificate under ss.92 or 94 of the MAC Act before commencing court proceedings. The first opponent had not done so.

McLoughlin DCJ rejected the claimant’s contention, on both the primary basis that the injury was not an “injury” as defined in the MAC Act and on the alternative basis that no evidence had been adduced to show fault on the part of the truck owner, as is necessary to establish a claim under the MAC Act.

On appeal, the claimant conceded the issue of fault. The essential matter for determination was whether the first opponent’s injury was the “result of and [was] caused during ... a collision...with the [claimant’s truck]” as within the definition of “injury” in the MAC Act.

Held (per Beazley JA, Mason P and McColl JA agreeing)

Application of the MAC Act

i. The definition of “injury” was to be construed in accordance with the intention of the legislature. In enacting the 1995 amendments to the Motor Accidents Act (NSW) 1988, the legislative intention was to impose both a temporal and causal requirement. This arises from the use of the words “if, and only if, the injury is a result of and is caused during” one of four specified occurrences. “Result of” requires the injury be sustained during certain events (the temporal requirement); “caused during” requires the injury be sustained as a consequence of those events (the causal requirement).

Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297; Pfeiffer v Stevens (2001) 209 CLR 57; Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; (2005) 215 ALR 385; Nominal Defendant v GLG Australia Pty Limited [2006] HCA 11

ii. Both the temporal and causal requirements are governed by the words “if, and only if”. In the case of the causal requirement this means that “caused during” is to be construed more narrowly than causation at common law. The amended definition looks to “notions of proximate cause found in insurance law”: Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; (2005) 215 ALR 385 at [102].

iii. The word “collision” can have a range of meanings depending on the context. In the phrase “collision...with the vehicle” in the definition of “injury” the word “collision” must be construed so as to give effect to the scope, objects and purposes of the statute as a whole. The dictionary definition alone is thus not determinative.

Project Blue Sky Inc. v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355; Townsville Trade Waste Pty Ltd v Commercial Union Insurance Co of Australia (2002) 2 Qd R 682; Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation; Pfeiffer v Stevens

iv. Precedents are of limited use in determining whether a particular set of facts fall within the definition of “collision”, as a slight change of facts may be the difference in a set of facts falling within the definition or not. It is of more use to focus on the MAC Act as a whole and the definition of “injury” within the Act.

Townsville Trade Waste Pty Ltd v Commercial Union Insurance Co of Australia (2002)

v. The effective cause of the injury sustained by the first opponent in this case was the negligence of an employee in the course of carrying out an employment task. The injury was not an “injury” for the purposes of the MAC Act.

Separate question

vi. The Court may make orders for the separate decision of any question of law, or partly of fact and partly of law. The decision of a separate question determines that question for the purposes of the proceedings, subject only to an appeal from the determination. Any appeal, if brought before the suit proceeds to a final determination, is by leave, being in respect of an interlocutory order. However the Judge in the lower court, McLoughlin DCJ, did not decide a separate question.

Bass v Permanent Trustee Co Ltd [1999] HCA 9; (1999) 198 CLR 334; Damjanovic v Sharpe Hume & Co (Services) Pty Ltd [2001] NSWCA 130

Issue Estoppel

vii. McLoughlin DCJ determined whether the MAC Act governed the second opponent’s claim on the facts as pleaded. Therefore no issue estoppel arises. Whether s.108 of the MAC Act governs the first opponent’s claim will depend upon the facts as proved.

Santos v Delhi Petroleum Pty Ltd [2002] SASC 272; Hall v Nominal Defendant [1966] HCA 36; (1966) 117 CLR 423; Licul & Ors v Corney [1976] HCA 6; (1976) 180 CLR 213

Precedent

viii. However, this judgment is precedent for the meaning of “collision” on the facts as pleaded.

ORDERS

1. Leave to appeal granted.

2. Appeal dismissed.
3. Claimant directed to file Notice of Appeal in Registry and pay the applicable filing fee.
4. Claimant to pay Opponents’ costs of the Summons for Leave to Appeal and of the Appeal.

2

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40240/2005

MASON P

BEAZLEY JA

McCOLL JA

2 May 2006

INASMUCH COMMUNITY INC V BRIGHT & ANOR


Judgment

1 MASON P: I agree with Beazley JA.

2 BEAZLEY JA: This is a concurrent hearing of an application for leave to appeal and, if leave is granted, an appeal from an interlocutory order of McLoughlin DCJ in which his Honour dismissed the claimant's application that the Statement of Claim filed by the first opponent be dismissed or struck out.

3 The first opponent alleged in the Statement of Claim that she was injured on 19 September 2003 when, whilst inspecting second-hand goods offered for sale by the claimant at its Op-shop premises, she was hit by the rear door of a truck owned by the claimant. The second-hand goods were located in the open shed section of the Op-shop which was also used for the unloading of goods. The claimant’s truck was parked in the shed with its rear doors open. However, the doors had not been securely latched and a gust of wind caught one of the doors, and it struck the first opponent in the back causing her injury. The first opponent alleged that her injury was due to the negligence of the claimant, through its servant or agent, in failing to properly secure the door.

4 The claimant filed a conditional appearance to facilitate the bringing of a Notice of Motion to strike out or dismiss the Statement of Claim on the basis that the first opponent’s claim fell within the provisions of the Motor Accidents Compensation Act (NSW) 1999 (the MAC Act), which is the statutory scheme governing the bringing of claims in respect of injuries suffered as a consequence of a motor accident. If the MAC Act applies, then, by operation of s.108 the first opponent was not entitled to commence court proceedings unless and until she had obtained a certificate in respect of the claim under ss.92 or 94 of the MAC Act, which she had not done.

5 The claimant contended that the first injury was the result of and caused during a collision with a motor vehicle within the definition of “injury” in s.3 of the MAC Act. McLoughlin DCJ rejected this contention. In doing so, he was persuaded by the reasoning of the Queensland Court of Appeal in Townsville Trade Waste Pty Ltd v Commercial Union Insurance Co of Australia (2002) 2 Qd R 682; [1999] QCA 386 as to the meaning of “collision” in the context of similar legislation. His Honour found in the alternative that the claimant had not established that the injury was caused by the fault of the owner of the truck in its use and operation, as must be established in order to bring a claim under the MAC Act. This finding was based on the fact that the claimant had adduced no evidence as to how the accident occurred.

6 The claimant’s Compulsory Third Party (CTP) insurer also filed a Notice of Motion seeking to be joined as a party, so as to give it standing to resist a finding that the first opponent’s claim fell within the provisions of the MAC Act: see s.79. That application was granted and the insurer was represented both on the hearing of the application before McLoughlin DCJ and on the appeal to oppose the orders sought by the claimant.

Issue on appeal

7 The claimant conceded for the purposes of the appeal that the first opponent’s injury was caused by the fault of its servant or agent. That disposed of any argument relating to the alternative finding of the trial judge that the claimant had not proved fault by the owner. For their part, the opponents accepted that the requirement of use or operation of the vehicle had been satisfied and the claimant embraced this concession.

8 That left as the essential matter for determination by this Court whether the first opponent’s injury was the “result of and [was] caused during ... a collision with the [claimant’s truck]” within the provisions of the MAC Act.

The MAC Act

9 Part 4.5 of the MAC Act governs the bringing of court proceedings in respect of claims for injuries sustained in motor accidents. Section 108 provides that a person is not entitled to commence court proceedings against another person in respect of a claim unless a certificate relating to the assessment of the claim has been issued under Pt.4.4, Div.2: Assessment of Claims: see ss.92 and 94.

10 “Claim” is defined in s.3 as follows:

“claim means a claim for damages in respect of the death of or injury to a person caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle.”

11 Chapter 5 provides for the award of damages. Relevantly s.122 provides:

“(1) This Chapter applies to and in respect of an award of damages which relates to the death of or injury to a person caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle.” (emphases added)

12 “Fault”, “injury” and “use or operation” are defined terms in the MAC Act: s.3. Those definitions are as follows:

“fault means negligence or any other tort.

injury

(a) means personal or bodily injury caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle if, and only if, the injury is a result of and is caused during

(i) the driving of the vehicle, or

(ii) a collision, or action taken to avoid a collision, with the vehicle, or

(iii) the vehicle’s running out of control, or

(iv) such use or operation by a defect in the vehicle.” (emphasis added)

use or operation of a motor vehicle includes:

(a) the maintenance or parking of the vehicle. ...” (emphases added)

13 As a matter of completeness, reference should also be made to the definition of “motor accident”:

“motor accident means an accident or incident caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle which causes... injury to a person.”

14 Because of the concessions made by the parties (see [7] above) there is now no issue in the case that the injury was caused by the “fault of the owner ... in the use or operation of the vehicle”.

Construction of the MAC Act

15 As I have indicated, the question for determination in this case is whether the first opponent’s injury was the result of or caused by a collision with the claimant’s truck. The phrase “collision ... with [a] motor vehicle” is contained within the definition of “injury”. The word collision itself is not a defined term. Both as a matter of common usage and by reference to authority it is apparent that it can have a range of meanings, depending upon its context. I will refer to its range of meanings shortly.

16 The definition of “injury” in the form in which it appears in the MAC Act was first introduced into the Motor Accidents Act (NSW) 1988 (the 1988 Act), the predecessor to the MAC Act, by the Motor Accidents Amendment Act (NSW) 1995 (the 1995 Amendment Act). The background to the 1995 Amendment Act, as disclosed by the Attorney-General in the Second Reading Speech, was a concern as to the wide range of accidents found by the courts to fall within the 1988 Act. The Attorney-General said:

“The CTP policy and the motor accidents scheme simply are not, and were never intended to be, a comprehensive accident compensation scheme providing substantial damages in all cases of injuries connected in some way to the use of a motor vehicle. Common sense and community expectations generally demand that the CTP policy provide coverage in respect of injuries which arise from crashes and collisions on the roads or from vehicles running out of control. Over the years the courts have interpreted the CTP policy as providing for a wide range of injuries often unrelated to motor accidents. For example, the CTP policy has been held to cover injuries sustained during the loading and unloading of vehicles, and injuries sustained while standing on the back of a stationary trailer, and injuries involved in the use of a firearm in a vehicle.

It is therefore proposed to amend the definition of ‘injury’ to adopt an approach...where ‘injury’ is qualified in terms of its cause.” (emphases added)

17 The restricted application of the MAC Act intended to be effected by the 1995 Amendment Act was discussed by the High Court in Allianz Australia Insurance Ltd v GSF Australia Pty Ltd (2005) 215 ALR 385; [2005] HCA 26. There the Court was concerned with the question whether the amended definition applied in circumstances where the plaintiff sustained injury whilst manually unloading airline containers from the back of a truck. The manual unloading was being undertaken because there was a defect in the loading equipment. The question for the Court was whether the plaintiff’s injury fell within sub-para (a)(iv) of the definition of "injury". In seeking to construe that paragraph, the Court considered the objects and purpose of the 1988 Act as amended so as to give effect to the legislative intention in enacting the 1995 Amendment Act: see Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297 at 320; [1981] HCA 26 at [23] per Mason and Wilson JJ; Pfeiffer v Stevens (2001) 209 CLR 57; [2001] HCA 71 at [69-70].

18 After referring to the statement of the Attorney-General in the Second Reading Speech, all members of the Court accepted that the 1995 Amendment Act was intended to limit the types of claim that had been held to fall within the 1988 Act. It was noted that this was achieved by introducing a temporal and causal requirement that would restrict the wide interpretation that previously had been given to the definition of “injury” in the legislation.

19 McHugh J, at [48], adopted the comment of Santow JA (Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2003] NSWCA 174; (2003) 57 NSWLR 321 at 332; [2003] NSWCA 174), that the intention of the legislature in introducing the 1995 Amendment Act was to confine the reach of the meaning of “injury”:

“Santow JA held, correctly in my opinion, that, consistent with the Minister’s Second Reading speech, the Act announces its own purposes in s 2A, and that cost-saving is the predominant consideration. His Honour held that in light of the cost-saving purposes of the Act, the breadth of its application is a relevant consideration. He found that ‘[i]f motor accident liability encompasses what is really employer liability, that purpose is clearly not served.’ Given also that s 2B directs a construction of the Act that promotes its object over one that does not, ‘[a]ny narrowing of its coverage readily supports the cost-saving objects of the ... legislation. Any extension does the opposite. ... The 1995 amendments were introduced to narrow the definition of injury and thus its reach.’” (footnotes omitted)

20 In the joint judgment, Gummow, Hayne and Heydon JJ said (at [101]-[102]):

“The text of the new definition of ‘injury’ manifests [the] legislative policy of restricting previous overbroad interpretations of the CTP insurance legislation. A stated object of the changes made by the 1995 Act was (s 2A(1)(b)) the reinstatement of a common law based scheme but to keep premiums ‘affordable’ by containing ‘the overall costs of the scheme within reasonable bounds’ (s 2A(2)(a)). A construction which promotes that object is to be preferred (s 2B(1)).

The use in the definition of the emphatic and intensive phrase ‘if, and only if’ directs attention to notions of predominance and immediacy rather than to more removed circumstances. The definition of ‘injury’ looks, for the CTP insurance system, to notions of proximate cause found in insurance law. That construction is consistent with the subject, scope and purpose of the 1995 Act.”

21 Further, Callinan J said (at [127]):

“It is against that background [of a broad interpretation of the provision] that [the legislature has] moved to ensure that the burden of claims made in circumstances in which the use of a motor vehicle was peripheral, or contributory only, to an injury negligently inflicted, be borne by those responsible or substantially responsible for it, industry, or, in appropriate cases, persons able to effect public risk insurance.”

22 The Court held that the injury in that case did not fall within the amended definition. As Gummow, Hayne and Heydon JJ said (at [103]):

“It was the system of work adopted by GSF to deal with the problem of unloading presented by the failure in operation of the motorised T-bar and, in particular, the direction to use the crowbar to lever the containers which had a predominant quality for, and an immediacy to, Mr Oliver’s injury. The defect in the T-bar was not a defect by which the accident was caused in the necessary statutory sense.”

23 In Allianz, the Court observed that the definition of “injury” falls into two parts. The first part of the definition (which was not amended by the 1995 Amendment Act) requires that, relevantly, there must be bodily injury caused by the fault of the owner of a motor vehicle in the use or operation of the vehicle. As McHugh J pointed out at [19] – [21] the first part of the definition “focus[es] on the fault of the owner in its capacity as owner” in “relation to” or “in connection with” the “use or operation of the vehicle”. As I have already indicated, the concessions made by the parties (by the claimant as to “fault of the owner”; and by the opponents as to “bodily injury caused by ... the use or operation” of the truck) mean that the first part of the definition was not in contest, at least as argued on the appeal.

24 It was in the second part of the definition that the legislature sought to restrict the operation of the provision. In the joint judgment in Allianz their Honours at [93] rejected an argument that the words “result” and “cause” in the definition of “injury” bore different meanings to each other and that the latter narrowed the meaning of the former. Rather, as they explained at [94] the terms were intended to convey cumulative criteria. The first was that “the injury be sustained during certain events”. That involves a temporal requirement. The other was that “the injury be sustained as a consequence of those events”. This was a causal requirement. Callinan J (at [126]) emphasised that the legislature had not intended that the more extensive common law meaning of “cause” apply to the definition of injury but that “something different and stricter was intended”. His Honour further explained at [130]:

“On a first reading of the whole of the definition, the reader should be immediately struck by the emphasis which is placed upon the notion of movement, of the driving of the vehicle, or its operation to avoid a collision whilst moving, or of its running out of control. It equally strikes me as an unlikely proposition that it was intended that, for a relevant injury to have occurred, the vehicle must always have been in motion, except in the case of an injury resulting from a defect in it.” (emphasis added)

25 His Honour then (at [131]) expressed the view that sub-paras (a)(i), (a)(ii) and (a)(iii) of the definition involved the vehicle being in motion. McHugh J did not expressly state that these sub-paragraphs of the definition related to the vehicle being in motion. His view (at [52]) was that an injury caused during loading and unloading operation does not fall within the MAC Act, unless, the injury is "caused by" a defect in the vehicle. The joint judgment did not comment on this aspect.

Meaning of “collision”

26 Senior counsel for the claimant submitted that the facts as pleaded in the Statement of Claim fitted precisely within the criteria catalogued by McHugh J in Allianz (with the appropriate changes being made to reflect the requirements of sub-para (a)(ii) as compared to sub-para (a)(iv) which was in issue in Allianz). Thus, it was said:

(a) the claimant was alleged to be at fault in failing to secure the open door (the claimant accepted responsibility for the acts of its servant or agent in this regard);

(b) the fault of the owner was alleged to be in the use or operation of the vehicle (this was also conceded);

(c) the injury was alleged to be caused by the fault of the owner through its servant or agent in the use of the vehicle;

(d) the injury was alleged to be as a result of a collision with the vehicle; and

(e) the injury was alleged to be caused during a collision with the vehicle.

27 For myself, I do not find this catalogue of criteria to be helpful in this case. In the first place it was crafted by his Honour in the process of determining whether sub-para (a)(iv) had been satisfied. Sub-paragraph (a)(iv) raises different considerations to those under sub-paras (a)(i)-(a)(iii). But, in any event, it begs the question whether the first opponent’s injury was a result of and was caused during a collision with the truck.

28 Senior counsel for the claimant also referred the Court to the dictionary definition of “collision”, submitting that the circumstances of the injury suffered by the first opponent fitted within those definitions. The dictionary definitions are:

Oxford Dictionary (1989, 2nd ed): “the action of colliding or forcibly striking or dashing together; violent encounter of a moving body with another...”

Macquarie Dictionary (2005) online ed): “the act of colliding; a coming violently into contact; crash.”

29 I accept that the incident in which the first opponent suffered her injury falls within these dictionary definitions. However, a dictionary definition is not determinative of the meaning of a statutory provision. Rather, a statutory provision has to be construed so as to give effect to the objects and purpose of the statute: see Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation; Pfeiffer v Stevens. Although the starting point is the language used, it is the meaning of the word or phrase in the context of the statute as a whole construed so as to give effect to the scope, object and purpose of the statute, which must be determined: see Project Blue Sky Inc. v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, esp at 381; [1998] HCA 28. The mere fact that the accident might fall within one of the dictionary definitions does not necessarily provide that answer.

30 In Townsville Trade Waste Pty Ltd the Queensland Court of Appeal held that an incident that might fall within the dictionary definition of the word "collision" did not necessarily fall within s.5(1) of the Motor Accident Insurance Act (Qld) 1994 (the Queensland Act). Sub-paragraphs (a)(i), (a)(ii) and (a)(iii) of the Queensland Act are in the same terms as the MAC Act (sub-paragraph (a)(iv) of the Queensland Act refers to a defect in the vehicle causing loss of control of the vehicle while it is being driven and is thus in different terms to sub-para (a)(iv) of the MAC Act). In that case the plaintiff who was standing on the chassis of a truck undertaking repair work, was killed when an elevated rear section of the truck fell on him due to leakage of fluid from the hydraulic system. Davies JA commented at [21] that although the accident fell within the dictionary definition of “collision” it would not ordinarily be described as a collision with a motor vehicle.

31 His Honour considered that a more natural description of the accident was that the first opponent was crushed by the falling body of the truck. It was necessary therefore to determine whether the phrase “collision” had a different meaning in its statutory context then normal parlance would suggest. Davies JA considered the critical question to be whether the sub-paragraph was restricted in its operation to an injury resulting from a collision with the vehicle in its capacity or function as a motor vehicle. The trial judge had found that that was the proper construction of the provision. Davies JA said at [23]:

“There are at least two reasons why ... that conclusion is correct. The first is that it excludes from the operation of subpar. (ii) an event which would not, in ordinary language, be thought of as a collision with a motor vehicle. The second is that it restricts the operation of subpar. (ii) to a category consistent with the restricted operation of the other subparagraphs. The subparagraphs as a whole then provide a consistent and coherent basis for application of the section."

32 His Honour also considered that this construction was consistent with the purpose of the legislation which was directed to accidents involving a more direct use of a vehicle than accidents occurring as a result of some incidental use. His Honour considered that sub-para (a)(ii) of the Queensland Act, “[was] not restricted in its operation to an injury resulting from a collision with a moving vehicle” (at [22]).

33 White J considered that the question whether the facts constituted a “collision ... with the motor vehicle” within the meaning of the Queensland Act was a difficult one. Her Honour observed that cases might or might not fall within the legislation with only a slight variation of facts. It had been argued in that case that the provision only applied in the case of a collision with the whole vehicle. In considering that argument, her Honour (at [35]) asked whether “focussing on the wholeness of the motor vehicle [would] exclude a situation where a car door of a stationary vehicle is opened carelessly so that it strikes and injures a stationary pedestrian or a moving bicyclist”. She considered that the latter example may easily be described as a “collision with” a motor vehicle while the former did not readily do so, but that opinions may well differ on that question. In the end result her Honour considered that to describe what happened as a "collision with” a motor vehicle was a significant departure from the meaning of the expression in the Queensland Act. Although White J did not make any express comment as to whether sub-para (a)(ii) was restricted to a moving vehicle, it is apparent from the examples she considered that she did not consider the sub-paragraph to be so limited.

34 McMurdo P (dissenting) considered that the case fell within the dictionary definition and that, as a matter of construction, the accident fell within the statutory provision.

35 In AMP General Insurance Ltd v Kull [2005] NSWCA 442 this Court considered the operation of sub-para (a)(ii) of the definition of “injury” in the MAC Act in somewhat unusual circumstances. The respondent had placed his hand on the fan belt of a Land Cruiser in order to effect an adjustment. Without warning, the owner of the Land Cruiser initiated the ignition, causing the fan belt to move, with the result that the respondent's hand became jammed in the fan belt mechanism. Hodgson JA held (at [52]) that it would be a "significant departure from the natural meaning of the phrase" to find that the injury "was the result of and caused during a collision with the vehicle". His Honour added:

“The contact of a pedestrian with a stationary vehicle could possibly fall within that expression; and such a collision could be with an appendage to the vehicle, such as a wing mirror. But there at least has to be injury caused by an impact that can fairly be described as a collision with the vehicle, that is, an impact due to the mutual motion of whatever collides with the vehicle and the vehicle itself. A hand being drawn into a fan belt mechanism does not in my opinion amount to a collision of the hand, or the person whose hand it is, with the vehicle" (emphasis added)

36 The claimant relied upon this passage (particularly the emphasised portion), submitting that the first opponent's injury was a result of, and caused by, her coming into contact with the door of the truck and that there was thus a collision with the truck.

37 The additional comments of Hodgson JA were, of course, obiter. As with all obiter remarks the context in which they are made is relevant to understanding their import. His Honour, in the course of determining whether the particular facts with which he was dealing fell within the provisions of the MAC Act, referred to other circumstances that he considered might do so, in order to test the direct proposition with which he was concerned. That is legitimate and often useful in testing a proposition within the particular case. However, care must be taken especially when dealing with legislation of the type here, where particular facts may sit precariously on either side of the definition, in seeking to bring a case within an example or category referred to in other cases. As White J observed in Townsville Trade Waste Pty Ltd at [35], a slight change in the facts could be the difference in a particular injury either falling within the definition or not. Each case must be considered having regard to the particular circumstances of the injury. Mahoney P recognised this in Balfour Beatty Power Constructions (Australia) Pty Ltd v Government Insurance Office of New South Wales (1996) 24 MVR 162, a case decided under the 1988 Act, when he said: “application of [the Act] to a set of facts does not ... lead inevitably to one conclusion rather than another”.

38 For myself, I have not found particular assistance from the decided cases to which the Court was referred. They were all cases dealing with their own specific facts. Thus it is necessary and more satisfactory to return to the MAC Act and the definition of injury. The first part of the definition of “injury” in s.3 requires that the injury was caused by the fault of the owner or driver of the vehicle in its use or operation. I have already discussed this above. The second part of the definition provides that an injury only comes within the provision “if the injury is a result of and is caused during" one of four specified circumstances. As the High Court pointed out in Allianz the second part of the definition involves both a temporal connection between an injury and the relevant circumstance specified in sub-paras (a)(i)–(a)(iv), as well as a proximate cause. There is no issue in this case about the former. The question is whether the circumstances of this accident were the result of a “collision with” the truck. That brings me directly to the submissions advanced by the second opponent as to the proper construction of that phrase.

39 Senior counsel for the second opponent submitted that sub-para (a)(ii) is directed to the circumstance where the person who sustains the injury collided with a vehicle in the sense that the person was the moving participant in the dynamics of the accident. He submitted that this was clearly the intended scope of sub-para (a)(ii), as was apparent from the structure of the other sub-paragraphs of the definition. He submitted that leaving aside sub-para (a)(iv), the circumstance where the vehicle is the moving force is covered by sub-paras (a)(i) and (a)(iii). Thus, in the case of sub-para (a)(i), the injury had to be the result of and be caused during the driving of a vehicle. Although I have eschewed the use of examples in explaining the application of the provision, one that is clear in relation to sub-para (a)(i) is where a vehicle travels through a red light and hits a pedestrian on a pedestrian crossing. In the case of sub-para (a)(iii) the vehicle is again, as a matter of the plain language of the paragraph, the moving object, that is, the paragraph applies where the vehicle runs out of control. In that case, liability in the owner or driver is controlled by the opening provisions of the definition. In each of sub-paras (a)(i) and (a)(iii) the person injured may or may not be moving, but that is not a relevant matter. The focus in those two sub-paragraphs is upon injury resulting from and being caused during the motion of the vehicle in circumstances where there is fault in the owner or driver in the use and operation of the vehicle.

40 It was then submitted that the logical construction of sub-para (a)(ii) was that it applied to the circumstance where the person who sustains the injury collides with the vehicle. In other words, the moving entity is the person involved in the collision. That could occur when the injured person was in a vehicle, either as driver or passenger, when the car collided with another vehicle, or when the injured person was riding a motor bike or a bicycle and collided with a vehicle, or when the injured person was a pedestrian and came into contact with a vehicle. Liability for the injury by the owner or driver of the other vehicle would only arise where the first part of the definition of injury was satisfied, namely, where the injury was caused by the fault of the owner or driver of the other vehicle.

41 Although this approach appears to satisfactorily answer the question in this case and provides at least the starting point for the proper construction of the definition of “injury”, it fails to draw the necessary connection between the causal requirement specified in the definition and the collision. In my opinion, that connection is fundamental to the construction of sub-para (a)(ii). The problem with the approach as articulated by the second opponent can be demonstrated by asking whether there would be a “collision ... with” the truck within the meaning of the definition, if the facts here were reversed, so that the first opponent walked into the door of the truck as it was blown by the wind.

42 On the second opponent’s approach, such an incident would arguably fall within the definition; and yet there is no rational basis why that incident would and the actual incident here would not. As I have said, I consider that the deficiency with the postulated construction lay in the failure to connect the specification in sub-para (a)(ii), that is, that there be a “collision ... with” a vehicle, with the causal requirement in the second part of the definition. As the High Court pointed out in Allianz, the causal requirement is a proximate one: see especially in the joint judgment at [101]. A reference to the proximate cause of loss or injury is a well known concept in insurance law: see Lasermax Engineering Pty Ltd v QBE Insurance (Australia) Ltd [2005] NSWCA 66 per McColl JA at [39]. There are many ways of expressing the notion of “proximate cause” but in essence it means the effective or direct cause: see Australian Casualty Company Ltd v Federico [1986] HCA 32; (1986) 160 CLR 513 at 521; [1986] HCA 32; Government Insurance Office (NSW) v R J Green & Lloyd Pty Ltd [1966] HCA 6; (1966) 114 CLR 437 at 447; [1966] HCA 6; Wayne Tank & Pump Co Ltd v Employers Liability Assurance Corporation Ltd [1974] QB 57 at 66; Lasermax Engineering Pty Ltd v QBE Insurance (Australia) Ltd.

43 When it is realised that the legislature is concerned with the effective cause of an injury following a “collision ... with” a motor vehicle it is immediately apparent that not only the incident alleged here, but also the reverse factual circumstance I have postulated, do not fall within the definition. The direct, effective or proximate cause in each case was the casual negligence of an employee in the course of carrying out an employment task.

44 This construction allows each of the sub-paragraphs to operate according to their ordinary and natural meaning. It gives full operation to the causal and temporal application of the two parts of the definition to which I have already referred. It avoids the inclusion of the loading and unloading cases that the Attorney-General said in the Second Reading Speech were not to be covered by the definition. It allows for the general law of negligence to operate in circumstances where an accident occurs which, although involving the use or operation of a motor vehicle, is not an accident that occurs on the roads or places where vehicles are used as a normal part of their driving such as driveways and car parks. I would only add that on this construction, it is not necessary that “the motor vehicle” be in motion: cf Allianz per Callinan J at [131] (referred to at [24] above).

45 In this case, although the vehicle was in a place that was used by vehicles for parking, the injury alleged by the first opponent was, as I have said, a direct result of a casual act of negligence not associated with the act of driving (sub-para (a)(i)) or with the truck running out of control (sub-para (a)(iii)). On the facts as pleaded (and partly as appears in correspondence that was in evidence) the door had been opened as part of an unloading operation. The negligence alleged therefore had occurred as part of an industrial operation such that the injury was not the result of nor caused during a collision with a vehicle. It follows, in my opinion, the injury sustained by the first opponent was not an injury for the purposes of the MAC Act and his Honour’s conclusion in that regard was correct.

46 In those circumstances, subject to the considerations I raise below, I would grant leave to appeal but dismiss the appeal.

47 The claimant’s Notice of Motion sought an order that:

“1. The plaintiff’s Ordinary Statement of Claim be dismissed or alternatively struck out.”

48 An application to strike out a pleading is brought pursuant to Pt.9 of the District Court Rules, which provides that the whole or part of a pleading may be struck out where, inter alia, it discloses no reasonable cause of action: r.17(i)(a); or is otherwise an abuse of process of the Court: r.17(i)(c). An application to dismiss proceedings is brought under Pt. 11A Div. 2, where no reasonable cause of action is disclosed: r.3(1)(a); or the proceedings are an abuse of the process of the Court: r.3(1)(c). However, in the opening paragraph of his judgment, the trial judge referred to Pt.26 r.5AA which provides that the Court may make orders for the separate decision of any question of law, or partly of fact and partly of law. This was a curious course if taken, given the relief sought in the Notice of Motion.

49 That raises the question of the basis under which the trial judge proceeded. The manner in which the Court dealt with the proceedings is important for at least the following three reasons. The first is procedural. If the application had been made for summary dismissal under either Pt.9 or Pt.11A, then the principles in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69 would apply. Initially, the opponents had taken a General Steel point in their submissions to the Court. That argument was abandoned.

50 The second relates to whether the trial judge in fact determined a separate question. When a decision is made to determine a separate question, the separate question needs to be clearly stated. The determination of that question may require the Court to proceed upon agreed facts. The question must also be expressly answered. The decision of a separate question determines that question for the purposes of the proceedings, subject only to an appeal from the determination. Any appeal, if brought before the suit proceeds to a final determination, is by leave, being in respect of an interlocutory order: Bass v Permanent Trustee Co Ltd [1999] HCA 9; (1999) 198 CLR 334 at 360; contra Damjanovic v Sharpe Hume & Co (Services) Pty Ltd [2001] NSWCA 130.

51 Although the trial judge made reference to Pt.26 r.5AA in his reasons, there was no formulation of a separate question by his Honour. Rather, after referring to the claimant’s application to have the Statement of Claim dismissed or struck out and to have the matter determined under the Pt.25 r.5AA his Honour merely said:

“In effect, [the claimant] contends that the injury described, and its happenings as set forth in the [Statement of Claim], bring the matter to be determined under the provisions of the [MAC Act]”

52 His Honour then proceeded to consider the matter on the allegations in the Statement of Claim.

53 His Honour concluded:

“...I am of the view that the accident described in the [Statement of Claim] is not a collision within the meaning of the [MAC Act]”.

54 Senior Counsel for the second opponent submitted that it appeared from those two passages that his Honour in fact determined a separate question. As I understand the submissions put on behalf of the first opponent, the first opponent also accepted that that was how his Honour proceeded, although they also seemed to submit that the matter should be determined by this Court on the narrower basis of whether the Statement of Claim should be dismissed or struck out. Counsel for the claimant submitted that there was no issue of fact to be decided on the appeal and that the issue was whether on the facts as pleaded, there had been an “injury” within the meaning of the MAC Act.

55 Senior counsel for the claimant commented that it is not uncommon for courts to consider “by Notice of Motion, actions for dismissal arising from the provisions of the [MAC Act]”, and that the opponents had been content for the interpretation issue to be dealt with “as a separate issue to the trial”.

56 It is clearly unsatisfactory for the matter to be in such a state of uncertainty. The uncertainty is compounded by the alternate finding made by his Honour that he was not satisfied on the evidence that the claimant had established “fault of the owner or driver ... in the use or operation of the vehicle”. Such a finding was more likely to have been made within the context of an application for the Statement of Claim to be dismissed or struck out.

57 The claimant sought to obviate any difficulty it might have in relation to the alternate finding by conceding for the purposes of the appeal that there had been relevant “fault”. This was undoubtedly a tactical consideration so as to quarantine, in the claimant’s favour, one of the prescriptive requirements of the definition of “injury”. However, that approach would seem to indicate that the claimant considered that the matter was dealt with under Pts. 9 or 11A and not by way of the determination of a separate question.

58 I have concluded that his Honour was correct in finding that on the facts as pleaded in the Statement of Claim the first opponent’s injury does not fall within “injury” as defined in the MAC Act. The claimant’s concession in relation to fault does not alter that conclusion. If his Honour did not determine a separate question, then it would still be open to the claimant to argue, at the trial, that the claim is defeated by non-compliance with s.108. That is unsatisfactory and does not accord with the intent of the parties in having the issue litigated prior to the hearing.

59 For my part, I am not satisfied that his Honour determined a separate question. That then leaves the question of what orders ought to be made and the effect of this Court’s decision on the District Court proceedings.

60 There is no doubt that the appeal should be dismissed. Even if there was no separate determination of an issue, there is a question whether the trial judge’s order was a final determination of an issue in any event, and, if so, what issue. A final determination of an issue would create an issue estoppel. In Santos v. Delhi Petroleum Pty. Ltd. [2002] SASC 272 Lander J (Williams and Besanko JJ agreeing), considered whether an issue estoppel could arise in respect of an issue determined in interlocutory proceedings. His Honour concluded that the answer depended not so much on the nature of the proceedings but whether the determination itself was final. As he observed at [399]:

“There is no reason in principle why an issue might not be finally determined in interlocutory proceedings. Some interlocutory applications do finally dispose of the parties’ rights. Hall v Nominal Defendant [1966] HCA 36; (1966) 117 CLR 423 per Owen J at 440-441 and Windeyer J at 444; Licul & Ors v Corney [1976] HCA 6; (1976) 180 CLR 213.”

61 Hall was concerned with the question whether an order for extension of time was an interlocutory or final order, the issue being whether leave to appeal was required. Licul involved a similar issue, the question in that case being whether an order for substituted service was interlocutory or final. In each case the Court held the order made was interlocutory. In Licul, Barwick CJ said, at 200, that the order was not a final order disposing of the action between the parties and settling their substantive rights. Gibbs J said, at 225, that on the approach which had been followed in Australia the test was: “Does the judgment or order, as made, finally dispose of the rights of the parties?”

62 In D A Christie Pty Ltd v. Baker [1996] 2 VR 282, which involved a second application for an extension of time, Hayne J said, at 599:

“... to determine whether there is ... any issue estoppel, it is necessary to identify whether there has been a final determination as between the parties ... of a particular issue. The question whether there is any issue estoppel turns, in part, upon whether there has been a final determination of any issue between the parties. If all that the dismissal of the first application means is that the court has concluded that on the material then advanced no order for extension should be made, it is apparent that an order dismissing the application determines no issue between the parties that is raised on the second application for on that second application the issue would be different – whether any extension of time should be made on the new and different material then before the court. If, however, the true characterisation of the order dismissing the first application is that it is a determination of whether an extension of time should be granted to the applicant within which that applicant might bring an action complaining of a cause of action otherwise statute barred, it might perhaps be said that the dismissal of the application finally determined an issue which would arise in the course of the second application. Just as the classification of an order dismissing the application as final or interlocutory proceeds from the premise that a fresh application can be made, so too may the application of principles of issue estoppel be determined by the logically prior step of deciding what it is that the first court has determined – the narrow question whether an extension of time should be granted on the material then put forward, or the broader question whether any extension of time should be granted.”

63 The issue on the application in this case was whether the proceedings should be struck out for failure to comply with s.108 of the MAC Act. The determination of that issue directly involved the question whether the first opponent’s proceedings were a claim for damages within the meaning of the MAC Act. The question was determined on the facts alleged in the Statement of Claim. On those facts, I have concluded that the first opponent’s cause of action was not a claim within the MAC Act.

64 The parties did not adduce any evidence on its application before the trial judge apart from affidavit evidence by the solicitors which annexed correspondence. Indeed, at that time the claimant had not filed a defence. It is possible therefore that at the trial, the claimant might adduce evidence which, if accepted, would lead to a finding that the second opponent’s injury was governed by the MAC Act. To take an example (unlikely on the facts as were made known to the Court), it might be said that the driver of the truck failed to engage the handbrake so that the vehicle moved and it was in the movement of the truck that the door was flung about.

65 In my opinion, the District Court’s determination was a determination on what Hayne J in Christie v Baker described as the “narrow issue”: namely, whether on the facts as pleaded the second opponent’s claim is governed by the MAC Act. It follows that no issue estoppel arises in relation to whether s.108 of the MAC Act governs the first opponent’s claim. That does not mean however that this Court’s decision does not have precedential effect on the question of principle relating to the proper construction of the relevant provisions of the MAC Act.

66 Since preparing these reasons, the High Court has delivered its decision in Nominal Defendant v GLG Australia Pty Limited [2006] HCA 11. Although that case was concerned with para (i) of the definition of injury: viz personal injury ... caused during the driving of the vehicle: the Court (Gleeson CJ, Gummow, Hayne and Heydon JJ) at [25] confirmed what had been said in the joint judgment in Allianz as to the narrowing effect of the language employed in the 1995 amendment to the definition of injury. I would only add, by way of comment, as the matter was not put in issue, that but for the concession of the opponents as to “use and operation of [the] motor vehicle”, I would have found that the accident here “was not caused by the fault of the driver in the use or operation of the vehicle”: see Nominal Defendant v GLG Australia Pty. Limited esp. at [27]-[36].

67 Accordingly, I propose that leave to appeal be granted but that the appeal be dismissed. The claimant should be directed to file the Notice of Appeal in the Registry and pay the applicable filing fee. The claimant should pay the opponents’ costs of the Summons for Leave to Appeal and of the Appeal.

68 McCOLL JA: I agree with Beazley JA.

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LAST UPDATED: 03/05/2006