Brew v WorkCover Queensland [2002] QSC 416

SUPREME COURT OF QUEENSLAND CITATION: Brew v WorkCover Queensland [2002] QSC 416 PARTIES: BENJAMIN ANDREW BREW (applicant) v WORKCOVER QUEENSLAND (respondent) FILE NO/S: s940 of 2002 DIVISION: Trial PROCEEDING: Application for Leave to Commence Proceedings ORIGINATING COURT: Supreme Court at Townsville DELIVERED ON: 10 December 2002 DELIVERED AT: Townsville HEARING DATE: 6 December 2002 JUDGES: Cullinane J ORDER: Application dismissed with costs to be assessed. CATCHWORDS: WORKERS’ COMPENSATION – PROCEEDINGS TO OBTAIN COMPENSATION – PRELIMINARY REQUIREMENTS – whether the circumstances in which the Applicant claims to have sustained injuries in the claim form as delivered to the Respondent pursuant to the WorkCover Queensland Act 1996 falls within the provisions of s. 5 (1) of the Motor Accident Insurance Act 1994 (Qld) – whether failure to provide a safe system of work in relation to the number of hours in which the Applicant was required to work prevents liability being a liability “in respect of “ the vehicle concerned Motor Accident Insurance Act 1994 (Qld) s 5 (1). WorkCover Queensland Act 1996 (Qld) Curtin Bros (Qld) Pty Ltd v FAI General Insurance Co. Ltd (1995) 1 QdR 142 considered Megaw v Suncorp Metway Insurance Ltd (2002) 1 QdR 499 -- 1 of 5 -- 2 considered Suncorp Insurance & Finance v Workers’ Compensation Board of Qld (1990) 1 QdR 183 considered Technical Products Pty Ltd v State Government Insurance Office (Qld) (1989) 167 CLR 45 considered COUNSEL: A Moon for the applicant J McDougall for the respondent SOLICITORS: Connolly Suthers for the applicant Blake Dawson Waldron for the respondent [1] The issue between the parties here is whether the circumstances in which the Applicant claims to have sustained injuries as described by him in the claim form that he has delivered to the Respondent pursuant to the WorkCover Queensland Act 1996 falls within the provisions of s 5 (1) of the Motor Accident Insurance Act 1994 (The Act). [2] The Applicant contends that they do not whilst the Respondent contends that they do. The consequence to the Applicant of an adverse finding is that he would not be able to proceed against the Respondent. I am asked to assume the facts set out below in paragraphs (5) to (11) inclusive. [3] Although some of the authorities suggest that care should be exercised in resolving issues of this kind on an application like this I was urged by the parties to do so and I think that it is in the circumstances appropriate to do so. [4] The Applicant describes what occurred in the following way: 1. “I was injured in a single vehicle accident which occurred at about 4.30 a.m. on 19 November 1999 on the Bruce Highway, approximately 3 kilometres north of Ingham. I cannot recall the precise details of the accident and believe I fell asleep just before the accident occurred. 2. I had started work the previous day, 18 November 1999, at 8 am, and worked until 11 a.m. I recommenced work at 2.30pm and worked through to 6.30pm. Another driver called in sick and I was asked to do the Townsville to Halifax run that evening which I agreed to do. 3. In the days leading up to the accident I had worked normal day shifts. I had done extra shifts like the one I did that night once every two weeks or so usually when another driver called in sick. I felt I had to accept the extra work that was offered to keep my job although nothing like that was ever said to me, I thought it was implied by what had been said on previous occasions when I refused the work. 4. I tried to sleep between finishing work at 6.30 p.m. and starting again at 11 p.m. on the evening of 18 November 1999 but found I could not sleep. When I arrived at the loading dock of the Townsville Bulletin, I asked another truck driver if he had any Nodose to help keep me awake but he did not have any. -- 2 of 5 -- 3 5. On that particular night I was to do a paper run from Townsville to Halifax. I drove to Ingham and delivered papers to the various newsagents in Ingham and then drove to Halifax to deliver papers to a newsagent there. I felt tired driving form Ingham to Halifax. After delivering the papers at Halifax I had to do one further drop at the Herbert River Express in Ingham and I was then intending to stop the truck and have a sleep. The company policy allowed a driver to pull up and sleep if they are tired as long as the papers are delivered first. That is what I was intending to do. 6. The accident happened on the return journey from Halifax to Ingham. I can remember doing the delivery at Halifax and I can remember driving to the Halifax-Bruce Highway turn-off. From that turn-off to the scene of the accident I have a very vague memory. I can recall swerving on the Bruce Highway to try and bring the vehicle under control. 7. After that, all I can remember is getting into an Ambulance and heading to Ingham hospital.” [5] The Applicant was employed as a driver and it is his case that his employer was in breach of its duty of care to him by requiring him to drive the vehicle for excessive hours on the day prior to the accident extending to the early hours of that day. [6] Section 5(1) of the Act provides as follows: [7] “5.(1) This Act applies to personal injury caused by, through or in connection with a motor vehicle if, and only if, the injury – (a) is a result of – (i) the driving of the motor vehicle; or (ii) a collision, or action taken to avoid a collision, with the motor vehicle; or (iii) the motor vehicle running out of control; or (iv) a defect in the motor vehicle causing loss of control of the vehicle while it is being driven; and (b) is caused, wholly or partly, by a wrongful act or omission in respect of the motor vehicle by a person other than the injured person.” [8] As will be seen the legislation defines the area of application of the Act by reference to the circumstances in which the injury was caused. [9] There is no doubt that the matter falls within s 5(1)(a). The issue is whether it falls within s 5(1)(b). This involves the consideration of whether what is alleged against the employer constitutes a wrongful act or omission “in respect of the motor vehicle” by the employer. -- 3 of 5 -- 4 [10] As was pointed out in the joint judgment of Brennan, Deane and Gaudron JJ in Technical Products Pty Ltd v State Government Insurance Office (Queensland) (1989) 167 CLR 45 at 47: “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 to 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.” [11] It is not sufficient if the connection between the liability of the Defendant and the vehicle is no more than a coincidental or extraneous connection. [12] There are cases to which I was referred which arguably bear some degree of similarity to the present case although different conclusions have been reached. [13] In Megaw v Suncorp Metway Insurance Ltd (2002) 1 QdR 499 the Plaintiff claimed to have been injured whilst driving a vehicle in the course of his employment when the vehicle he was driving struck a washout on a remote road and rolled over. [14] The allegations of breach of duty consisted of allegations of a failure to ascertain the level of driving skill and experience of the Plaintiff and to instruct or warn him of the dangers associated with driving on dirt tracks and to supervise him whilst driving. [15] MacKenzie J after referring to s.5(1)(b) went on to say at p.501: “Whilst the words ‘in respect of’ are words of wide scope, it cannot be said, in as case with any connection relied on between the motor vehicle and causation of personal injury is that the employer had a duty to enquire about the employee’s driving capabilities and to warn of dangers when driving and to supervise the driver, those alleged wrongful acts or omissions are ‘in respect of’ a motor vehicle in the relevant sense. If the acts or omissions have to be characterised they are wrongful acts or omissions with respect to the system of work.” [16] In a judgement of the Court of Appeal (which was not referred to in Megaw’s case) namely Curtain Bros (Qld) Pty Ltd v FAI General Insurance Company Limited 1995 1 QdR 142, the Plaintiff was injured when whilst driving a vehicle provided to her by her employer to a building on a mine site that she was required to drive to as part of her employment the vehicle was driven off a road which ended abruptly and precipitously without any warning signs or barricades. [17] The court held that in these circumstances the legal liability of the employer to the Plaintiff was “in respect of” the vehicle supplied. Indeed it was said that “it could scarcely be doubted” that this was so. [18] The court went on to say at pp 146 and 147: -- 4 of 5 -- 5 [19] “It is fallacious to seek to subsume the specific basis of legal liability into some wider or different basis merely because the presence of additional factors makes the other basis of liability also available. Thus, for example, it does not exclude the particular basis of the Appellant’s liability to the Plaintiff in respect of the vehicle if it is also liable to her as an occupier in respect of the dangerous excavation or as an employer in respect of the unsafe system of work. The trial Judge drew a false dichotomy when he said that ‘the negligence of the appellant was in respect of the roadway and not in respect of the vehicle.’ One basis of liability is not exclusive of the other and the correct view is that the Appellant was negligent, and liable, in respect of both.” [20] Suncorp Insurance and Finance v Workers’ Compensation Board of Queensland (1990) 1 QdR 185 was a case in which a failure by an employer to provide a safe system of work in relation to the use by the Plaintiff of a vehicle was held to be a liability which arose “in respect of the vehicle” notwithstanding that the source of danger in that case which was realised was another machine and not the insured vehicle. [21] In my view the fact that the Applicant relies upon a failure to provide a safe system of work in relation to the number of hours which he was required to work does not prevent the liability being a liability “in respect of” the vehicle concerned. [22] It seems to me that what the Applicant has alleged here is that his injuries were sustained because the employer, in breach of its duty to him, required him to drive the vehicle for an excessive time and that a reasonable employer would have foreseen a possible risk of injury to the Plaintiff as a result of this. The risk is alleged to have realised itself in the way described by the Plaintiff in his claim. It is in my view not relevant that the risk is one which might have, but did not, realise itself in some other way not involving a vehicle or the particular vehicle as counsel for the Applicant contended. The liability in fact arose, on the Applicant’s case in respect of this particular vehicle. [23] In these circumstances it seems to me adopting the same approach as that adopted in Curtain Bros and in Suncorp v Workers Compensation Board that the alleged liability of the employer is a liability “in respect of” the vehicle concerned. [24] I therefore decline to make the declaration sought. [25] The application is dismissed with costs to be assessed. -- 5 of 5 --