Aorangi v Brambles Aust Ltd & Ors [2001] QCA 200

SUPREME COURT OF QUEENSLAND CITATION: Aorangi v Brambles Aust Ltd & Ors [2001] QCA 200 PARTIES: LEON AORANGI (plaintiff) v BRAMBLES AUSTRALIA LIMITED ACN 000 164 938 (first defendant/respondent) SUNCORP GENERAL INSURANCE LIMITED ACN 075 695 966 (second defendant) MERCANTILE MUTUAL INSURANCE (AUSTRALIA) LIMITED ACN 000 456 799 (third party/applicant) FILE NO/S: Appeal No 10940 of 2000 DC No 525 of 1996 DIVISION: Court of Appeal PROCEEDING: Application for leave s 118 DCA (Civil) ORIGINATING COURT: District Court at Brisbane DELIVERED ON: 1 June 2001 DELIVERED AT: Brisbane HEARING DATE: 14 May 2001 JUDGES: McPherson and Williams JJA and Chesterman J Separate reasons for judgment of each member of the Court, each concurring as to the order made ORDER: Leave to appeal is refused with costs to be assessed CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE’S FINDING OF FACT – where trial judge refused application for summary judgment – where trial judge orders that the action go to trial – whether trial judge rightly refused summary judgment INSURANCE – THIRD-PARTY LIABILITY INSURANCE – OTHER THIRD-PARTY LIABILITY INSURANCE – PUBLIC LIABILITY – where respondent admitted liability to claim made by plaintiff – where respondent sought to recover the amount liable to the plaintiff from the applicant pursuant to policy of Public Liability Insurance – interpretation of “carriageway or thoroughfare” – interpretation of “arising out of” -- 1 of 9 -- 2 Motor Accident Insurance Act 1994 (Qld) Motor Vehicles (Third Party Insurance) Act 1942-1951 (NSW) Bailey v Jamieson (1876) 1 CPD 329, followed Brandon v Barnes [1966] 1 WLR 1505, referred City of Keilor v O’Donohue (1971) 126 CLR 353, followed Davies v Stephens [1836] 7 Car & P 570; 173 ER 251, referred Glover v Politanski [1990] 2 Qd R 41, cited Government Insurance Office of NSW v R J Green & Lloyd Pty Ltd (1965-1966) 114 CLR 437, followed COUNSEL: Mr R Myers for the applicant Mr P Hastie for the respondent SOLICITORS: Carter Newell for the applicant Minter Ellison for the respondent [1] McPHERSON JA: I have read what has been written by Williams JA and by Chesterman J. I agree with the reasons of their Honours. The application should be dismissed with costs. [2] WILLIAMS JA: The background to this application for leave to appeal is set out in the reasons for judgment of Chesterman J which I have had the advantage of reading. [3] It should be noted that there has yet been no relevant findings of fact made by a court. The argument in this Court proceeded on the basis of the allegations of fact contained in the various documents constituting the pleadings. Because the present respondent, Brambles Australia Limited, settled with the plaintiff, Leon Aorangi, out of court the factual basis on which liability was thereby admitted is not known. However, it has to be said that as between the applicant, Mercantile Mutual Insurance (Australia) Limited, and the respondent, there appeared to be no major dispute as to the circumstances in which the plaintiff was injured. That said, it will nevertheless be for the court to make findings of fact in order to determine the liability, if any, of the applicant-insurer to the respondent-insured under the policy of insurance detailed in the reasons for judgment of Chesterman J. [4] In my view the reasons given by the learned District Court judge for refusing summary judgment in favour of the applicant cannot be sustained. I agree with Chesterman J that the footpath in Torrens Street was not "beyond the limits of any carriageway or thoroughfare". It is clear that at common law a carriageway includes a footway or footpath; no specific definition is contained in the policy. To the authorities referred to by Chesterman J, I would add reference to Davies v Stephens [1836] 7 Car & P 570; 173 ER 251. There, Lord Denman said a "carriageway always includes a footway". [5] But further on that point I would agree with Chesterman J that cl 4.4.4 cannot apply because the injury was actually sustained on the carriageway of Torrens Street; the -- 2 of 9 -- 3 flat tray truck owned by the plaintiff's company, the bin which was the direct cause of the injury, the respondent's vehicle, and the plaintiff himself were all within the limits of the carriageway when the incident initially occurred. The fact that the plaintiff finished up lying partly on the footpath is irrelevant. [6] Further, I am of the view that the learned District Court judge erred in considering that it was arguable that the Mercedes Benz truck owned by the respondent was not in its physical or legal control at the material time because the driver, its employee, was acting beyond instructions with respect to the loading of the bin. It is incontrovertible that at the material time the Mercedes Benz was in the physical and legal control of the respondent. [7] But I agree with Chesterman J that there is an alternative basis on which summary judgment ought to have been refused. There were two vehicles involved in the loading activity; the flat tray truck under the control of the plaintiff and the Mercedes Benz under the control of the respondent through its servant or agent, the employee-driver. It is clearly open to the Court to find that the real cause of the plaintiff sustaining his injuries was the fact that the driver of the Mercedes Benz deposited the heavy metal bin on the tray of the truck under the control of the plaintiff when that tray was not level; it was not level either because the road was sloping or because of the camber in the road. The bin moved on the tray of that truck thereby occasioning the injury to the plaintiff. [8] It seems to me that in those circumstances it would be open to the trial judge to make findings establishing that: (i) the plaintiff's personal injury occurred during the period of insurance as a result of an occurrence happening in connection with the business; (ii) the personal injury was caused, or contributed to, by negligence on the part of the respondent; (iii) the personal injury sustained by the plaintiff arose out of the loading of goods onto a vehicle used in work undertaken by the respondent (namely the flat tray truck) but which was not in the physical or legal control of the respondent because it was under the physical and legal control of the plaintiff. [9] If those findings were made then the matters specified in cl 4.4.5 would be made out and the exclusion in cl 4.4.1-3 would be excluded. The consequence of that would be that the applicant could be held liable to indemnify the respondent pursuant to the terms of the policy in question. [10] The ultimate determination of the issues raised as between the applicant and the respondent will be dependent upon findings of fact made at trial and the application of the clauses in question to the facts as found. [11] It follows that leave to appeal should be refused. [12] I agree with the orders proposed by Chesterman J. [13] CHESTERMAN J: The applicant for leave to appeal is the third party in proceedings commenced in the District Court by the plaintiff, Leon Aorangi, -- 3 of 9 -- 4 against the first defendant, (“Brambles”) and its compulsory motor vehicle insurer, Suncorp General Insurance Limited. It was Brambles who joined the third party. The only parties to the application are the third party and Brambles. The plaintiff’s claim was for damages for personal injuries which he alleged were caused by the negligence of one of Brambles employees, Clyde Haack. Brambles admitted liability and compromised the plaintiff’s claim by the payment of $180,000 plus costs. It seeks to recover that amount from the third party, (“MMI”), pursuant to the terms of a policy of Public Liability Insurance which it issued. MMI denies that it is liable under the policy to indemnify Brambles against the plaintiff’s claim. [14] On 20 November 2000 Wylie DCJ refused an application brought by MMI pursuant to UCPR 293(1) for summary judgment against Brambles, for an order that its claim for indemnity under the policy be dismissed. The facts giving rise to the plaintiff’s claim against Brambles, and Brambles’ consequent claim for indemnity against MMI were not in dispute. Those uncontroversial facts, MMI submitted, made it clear that the policy did not extend to Brambles’ claim. The judge did not agree. His Honour thought that Brambles’ claim was not “so plainly unsustainable that it should be summarily dismissed”. The action was ordered to go to trial. [15] The applicant submits that it is both pointless and unjust to insist upon a trial when Brambles’cause of action against MMI is demonstrably untenable. [16] Brambles relevantly carried on the business of removing and transporting rubbish and waste of various types. The plaintiff was the employee of a company which, judging by its name, Aorangi Trust Pty Ltd, was owned by him and his family. That company subcontracted with Brambles for the performance of some aspects of waste removal. It owned a flat tray truck which it used for that purpose. The company took out a “Business Pak” policy of insurance issued by MMI covering several separate risks each contained in a separate “policy” though all forming part of the one documentary contract. Policy F dealt with legal liability and is the relevant policy for this application. The policy (clause 1.3) provided that cover should be extended to “any principal in respect of . . . liability arising out of the performance by (Aorangi Trust Pty Ltd) of any contract or agreement for the performance of work for such principal. . . .” It is accepted that Brambles was such a principal and that, accordingly, it is relevantly the insured under the policy which may be regarded as having been effected by Aorangi Trust Pty Ltd on Brambles’ behalf. [17] The plaintiff was injured on 15 May 1995 when he was struck by a refuse bin which had been lowered onto the tray of his company’s truck by a lifting device attached to a Mercedes Benz truck owned by Brambles and driven by Mr Haack. The bin was of the industrial collection type, presumably made of steel and mounted on roller wheels. The plaintiff’s truck was stationary in Torrens Street Annerley. It appears from the pleadings that the truck was parked on a slope. The Mercedes Benz was fitted with tynes located at the front of the vehicle. Mr Haack used these to empty the bin into Brambles’ truck. He then used them to place it onto the tray of the plaintiff’s truck. -- 4 of 9 -- 5 [18] The plaintiff was standing on the tray of his truck when the bin was loaded onto it. Mr Haack may have shaken the bin off the tynes. Because of the slope of the tray it rolled towards the plaintiff who was injured when struck by the bin on the truck or when it fell on him after he jumped off it. After his fall the plaintiff lay partly on the footpath and partly on the road surface. [19] The plaintiff’s truck was equipped with its own crane which would ordinarily have been used for the purpose of lifting the bin onto the tray. Had the crane been so used the plaintiff, presumably, would not have been on the tray during loading. Brambles claims that using the tynes of its vehicle to load the bin was not within the scope of Mr Haack’s employment. On this occasion he chose, unusually, to put the bin on the plaintiff’s truck because it was still on the tynes, having just been emptied. [20] The last fact that needs to be mentioned is that the Mercedes Benz truck was registered and insured pursuant to the Motor Accident Insurance Act 1994. [21] Clause 2 of the policy provides that: “(MMI) will indemnify (Brambles) up to the limit of liability against claims for compensation in respect of; . . . personal injury; . . . occurring during the period of insurance . . . as a result of an occurrence happening in connection with the business.” An “occurrence” is: “An event . . . which causes personal injury . . . which is neither expected nor intended . . .” Clause 4 provides that MMI shall not be liable for claims in respect of: “4.4 Personal Injury . . . arising out of the ownership possession, operation, control, maintenance or use by (Brambles) of any Vehicle: 4.4.1 which is registered; or 4.4.2 which is required under any legislation to be registered; 4.4.3 in respect of which insurance is required to be effected by or on behalf of (Brambles) by or under any legislation including legislation of any State or Territory, whether or not such insurance is effected. Exclusion 4.4 does not apply to Personal Injury . . .: 4.4.4 caused by or arising from the delivery or collection of goods to or from any Vehicle where such Personal Injury or Property Damage occurs beyond the limits of any carriageway or thoroughfare; 4.4.5 arising out of the loading or unloading of or the delivery or collection of goods to or from any Vehicle used in work undertaken by (Brambles) or on (Brambles) behalf but not in (Brambles) physical or legal control. -- 5 of 9 -- 6 Despite being drafted in plain English the exemptions created by clauses 4.4.4 and, in particular, 4.4.5 to the exclusion found in clause 4.4.1 – 4.4.3 are not easy to understand. It is clear that if the plaintiff’s injuries were occasioned in circumstances which meet the description set out in either clause 4.4.4 or clause 4.4.5 the exclusion found in the earlier parts of clause 4.4 will not apply so as to defeat Brambles’claim for indemnity. [22] It is not in dispute that the plaintiff’s injury arose out of Brambles’ ownership possession and/or operation of the Mercedes Benz. Prima facie the claim for indemnity made by Brambles in respect of the plaintiff’s claim against it is excluded from the cover given by the policy. [23] It is clear that the plaintiff’s injury was caused by, or arose from, the delivery of goods to a vehicle. If the plaintiff’s injury occurred “beyond the limits of any carriageway or thoroughfare” then clause 4.4.4 will prevent the exclusion from taking effect. That is to say the exclusion applies only to personal injury occurring on or within a carriageway or thoroughfare. [24] Wylie DCJ thought it arguable that, because the plaintiff fell onto the footpath of Torrens Street, his injuries may have occurred “beyond the limits of any carriageway or thoroughfare”, and that that issue should be resolved at trial. On the hearing of the application counsel for Brambles endeavoured to support the judge’s view but it is, with respect, beyond argument that the plaintiff was not injured “beyond the limits of any carriageway or thoroughfare”. One does not even need to consider whether a footpath is a carriageway or thoroughfare. The plaintiff was injured either on the tray of his truck which was on the carriageway of Torrens Street, or in falling off it onto the carriageway. It is immaterial that part of his body lay on the footpath. [25] Quite apart from this point of fact it is, I think, clear that the footpath was a thoroughfare. According to the Oxford English Dictionary, 2nd edition, the word means: “a passage or way through”, “a road, street, lane, or path forming a communication between two other roads or streets or between two places; a public way unobstructed and open at both ends”. The modern preoccupation with motor vehicles may have obscured the law’s understanding of what is a highway. In Bailey v Jamieson (1876) 1 CPD 329 Lord Coleridge CJ said (332): “ . . . The common definition of a highway . . . in all the text books of authority is, that it is a way leading from one market town or inhabited place to another inhabited place, which is common to all the Queen’s subjects.” Windeyer J said in City of Keilor v O’Donohue (1971) 126 CLR 353 at 363: “In short, the characteristic for law of a highway is simply that it is a way over which all members of the public are entitled to pass and repass on their lawful occasions.” These authorities do not insist that a highway is that which is traversed by wheeled vehicles. It is enough that they are ways open to the public to “pass and repass”. A footpath meets the description of a highway. The Divisional Court in Brandon v -- 6 of 9 -- 7 Barnes [1966] 1 WLR 1505 at 1514 had no doubt that a footpath adjoining a highway was itself a highway. Being a highway, whether or not it is a carriageway, a footpath is clearly a thoroughfare. Clause 4.4.4 therefore does not assist Brambles. [26] If the policy exclusion is not to apply it must be by the operation of clause 4.4.5. The learned District Court judge thought there should be a trial on the question whether the vehicle was in Brambles’ physical or legal control when the plaintiff was injured. The doubt was thought to arise because Mr Haack, in using the Mercedes Benz to load the bin, was acting outside the scope of his authority so as to make his possession and operation of that vehicle his own, and not his employer’s. Again with respect, there appears no substance in this contention. The Mercedes Benz was physically controlled by Brambles’ servant whether or not the particular manner in which he used it was sanctioned by Brambles. That vehicle was at all times in Bramble’s legal control. [27] There is, however, another point which did not emerge clearly during argument in the District Court. It concerns the construction of the clause. Exclusion 4.4 does not apply to personal injury “arising out of the loading or unloading of or the delivery or collection of goods to or from any vehicle used in work undertaken by (Brambles) . . . but not in (Brambles’) . . . control.” It appears to have been assumed in argument before Wylie DCJ, and initially in this court, that the vehicle referred to was the Mercedes Benz. Attention then focussed on whether it was in Brambles’ control. But giving the words of clause 4.4.5 their ordinary meaning (as one should) there seems no reason why the vehicle referred to should be limited to the Mercedes Benz. The clause is equally applicable to both that vehicle and the plaintiff’s truck. The plaintiff’s injury arose out of the loading of, or the delivery of goods to, his company’s truck. Equally those injuries arose out of the delivery of goods from Brambles’ vehicle. The plaintiff’s truck (vehicle) was not in Brambles’ physical or legal control. If it is the relevant vehicle for the purposes of clause 4.4.5 the clause would apply with the result that the exclusion in clause 4.4.1 - .3 would have no effect on Brambles’claim for indemnity. [28] Counsel for the applicant submits that clause 4.4.5 is concerned with the vehicle which caused the injury, or which was most closely connected causally to the infliction of the injuries. By way of illustration he mentioned the use of the Mercedes Benz to load a bin onto a fixed structure in the course of which injury occurred. Such an occurrence would fall outside of the scope of clause 4.4.5 because the only vehicle involved would have been Brambles’, and it would have been under its control. It would, counsel submitted, be absurd if the policy produced two different outcomes depending on the chance that on one occasion the bin was put onto a fixed structure and on the other the back of a stationary vehicle. [29] I am by no means persuaded that the result is absurd. The policy was meant to indemnify Brambles against liability for damages for personal injuries arising from its business operations in all their variety. Indemnity is excluded in some circumstances which are to be identified by the wording of the clauses imposing the restriction. They should be read literally, giving them their ordinary meaning. If that process results in there being some circumstances of injuries involving (to use a neutral word) a registered motor vehicle in which there is no cover, but other circumstances also involving a registered motor vehicle in which there is cover, that is simply a consequence of the bargain made by the parties. The words of the -- 7 of 9 -- 8 policy are the only sure guide to what they intended to be the scope, and the limit on the scope, of cover. The clause should not be read with any preconception as to what the parties (or the insurer) “must” have intended to be the ambit of its liability. [30] Nor do I think it possible to read the words “arising out of” as meaning “caused by”, as counsel for MMI argues. In a case concerning the Motor Vehicles (Third Party Insurance) Act 1942-1951 (NSW), Government Insurance Office of NSW v R J Green & Lloyd Pty Ltd (1965-1966) 114 CLR 437 Barwick CJ said (443): “ . . . I think the expression “arising out of” must be taken to require a less proximate relationship of the injury to the relevant use of the vehicle than is required to satisfy the words “caused by”. It may be that an association of the injury with the use of the vehicle, while it cannot be said that that use was causally related to the injury, may yet be enough to satisfy the expression “arise out of” as used . . . in the policy.” In the same case Windeyer J said (447): “The words “injury caused by or arising out of the use of the vehicle” postulate a causal relationship between the use of the vehicle and the injury. “Caused by” connotes a “direct” or “proximate” relationship of cause and effect. “Arising out of” extends this to a result that is less immediate; but it still carries a sense of consequence.” [31] The plaintiff’s injuries arose out of the loading of his truck which was used in work undertaken by Brambles. Brambles did not control that truck. If some causal relationship is required between the plaintiff’s truck and his injuries it is, I think, provided by the fact that the tray sloped because of where the truck had been stopped. For that reason it was dangerous to place a wheeled bin on the tray when the plaintiff was also there. In this regard the case is at least as strong, from the point of view of causation, as Glover v Politanski [1990] 2 Qd R 41 at 44, 45-46, and 49-50, a case decided on analogous though not identical provisions. The terms of clause 4.4.5 are satisfied with the result that “exclusion 4.4 does not apply . . .”. [32] It is immaterial that the plaintiff’s injury also arose out of the delivery of goods from the Brambles’ vehicle which was under its control. There is nothing in clause 4.4.5 which insists that if injuries arise out of the loading or unloading of, or the delivery or collection of goods to or from, more than one vehicle then a choice must be made between them in order to see if the terms of the clause are satisfied. If two vehicles are involved in the sense required by the clause then unless both are controlled by the insured clause 4.4.5 will be satisfied. The exclusion will not apply. Clause 4.4 does not expressly or by necessary implication require the vehicle in clause 4.4.5 to be the same as the vehicle in 4.4.1. Depending on circumstances the vehicles may be, but need not be, one and the same. [33] If this approach is not right and where, as here, personal injury arises out of the loading etc. of two or more vehicles, a choice must be made between them for the purpose of ascertaining whether clause 4.4.5 is fulfilled, there is an ambiguity in the clause. It might apply to either vehicle. The clause itself does not indicate which vehicle is meant. That ambiguity should be resolved by reading the clause contra preferentum against MMI by choosing as the vehicle to which the clause refers that -- 8 of 9 -- 9 which will give the exclusion from liability least scope to operate. In this case the process would result in the choice of the plaintiff’s truck as the vehicle referred to. It being a vehicle which fitted the circumstances described by clause 4.4.5, the exclusion of indemnity would not apply. [34] For these reasons I would hold that the circumstances of the plaintiff’s injury and his claim against Brambles fall within the circumstances described in clause 4.4.5 with the result that the exclusion in 4.4.1 - .3 has no application to the claim by Brambles for indemnity under MMI’s policy. Accordingly summary judgment in favour of MMI was rightly refused. [35] I would refuse leave to appeal with costs to be assessed. -- 9 of 9 --