Brereton v Neil Mansell Transport Pty Ltd & Ors [1995] QSC 54

IN THE SUPREME COURT OF QUEENSLAND TOOWOOMBA DISTRICT REGISTRY No 8 of 1988 BETWEEN: TERRENCE PAUL LE GAY BRERETON Plaintiff AND: NEIL MANSELL TRANSPORT PTY LTD Defendant AND: SUNCORP INSURANCE AND FINANCE Defendant by Election AND: THE WORKERS' COMPENSATION BOARD OF QUEENSLAND Third Party JUDGMENT - DOWSETT J Judgment delivered 05/04/1995 The plaintiff was employed by the defendant as the driver of a prime mover and was injured whilst securing the load on a trailer attached to it. The defendant owned the prime mover, but the trailer was owned by Neil Mansell. The defendant by election was the insurer of both the trailer and the prime mover. The plaintiff sued the -- 1 of 9 -- 2 defendant for damages, alleging breach of the defendant's duty to him as an employee. The defendant by election admitted liability to the plaintiff, but now claims contribution from the Workers' Compensation Board of Queensland, the third party. I am asked to determine that claim upon the agreed facts recorded in ex.1. The plaintiff was injured at about 3.00 p.m. on 2 March, 1985 in an isolated spot near the South Australia/Queensland border, where he was engaged in transporting an oil rig from one site to another. The plaintiff's duties included assisting in loading and unloading the trailer and driving the prime mover and trailer. The trailer was fitted with adjustable legs which could be used to support the front of the trailer when it was not mounted behind a prime mover. The electrical and braking systems on the trailer were driven by the systems on the prime mover. On the relevant day, the plaintiff had parked the prime mover and trailer in a convenient spot, with the prime mover in gear and the brakes applied. He then assisted other persons in loading oil pipes on to the trailer. A fork lift driven by a fellow employee, Mark Alan Gunther was used in this process. Two other persons employed by Richter Drilling Pty Ltd positioned the pipes on the trailer. Once loading was completed for the day, the other persons departed. The plaintiff moved to the side of the trailer, intending to obtain a chain from the tool box to secure the load. As he was so doing, one of the pipes fell from the top of the load. As it fell, the pipe hit the plaintiff, causing him to fall to the ground. The pipe came to rest on top of him. Although it is not known why the pipe fell, it is an inevitable inference that it was as a consequence of negligence on the part of the defendant in breach of its contract of employment with the plaintiff. Clearly, a safe system of work would have prevented the accident. The defendant by election seeks contribution from the third party upon -- 2 of 9 -- 3 the basis that the defendant's liability was within the risks insured against under both its policy with the defendant by election pursuant to the Motor Vehicles Insurance Act 1936 and its policy with the third party pursuant to the Workers' Compensation Act 1916. At the relevant time, the Motor Vehicles Insurance Act (s.3(1)) required that:- "... the owner of any motor vehicle shall at all times during the registration ... or any renewal of 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 ... 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 ... 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." The Workers' Compensation Act (s.8(1)) relevantly required an employer to:- "... insure himself and keep himself insured ... against all sums for which, in respect of injury to any worker employed by him, he may become legally liable by way of - (a) ...; and (b) in the case of injury as aforesaid ... (except such an injury in respect whereof the employer is required by some other Act to provide against such liability as prescribed by such other Act) damages arising under circumstances creating also, independently of this Act, a legal liability in the employer to pay damages in respect of that injury. " The defendant is therefore only entitled to be indemnified by the third party if the former was not, at the relevant time, required by other legislation to insure against the liability in question. If that liability was a risk against which the defendant was required to insure pursuant to the Motor Vehicles Insurance Act, then it was not within the risk insured against pursuant to the Workers' Compensation Act. Section 3 of the Motor Vehicles Insurance Act imposed the duty to insure only -- 3 of 9 -- 4 upon the owner of a registered motor vehicle. Authorities, including Technical Products Pty Ltd v. State Government Insurance Office (Queensland) (1988) 167 CLR 45, establish that s.3 of the Act prescribes insurance against legal liability for damages for personal injury where such liability is "in respect of" the registered motor vehicle, provided that the injury in question is "caused by, through or in connection with" that motor vehicle. In Technical Products (supra), the plaintiff was injured whilst loading a trailer in the course of his employment with the defendant. He was standing on a pallet which was balanced on the tines of a fork-lift, passing bags of salt to another employee, who was standing inside a container mounted on a trailer. The plaintiff fell to the ground and was injured. He recovered damages against his employer. The trial Judge held that the employer was entitled to indemnity from the third party insurer of the trailer. This order for indemnity was upset by the Full Court, which decision was upheld by the High Court. The majority (Brennan, Deane and Gaudron JJ) said at p.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 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." At p.49, their Honours said: "Even accepting that the trailer and the container are probably 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 -- 4 of 9 -- 5 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. " Dawson J said at p.51:- "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 ... the words take their colour from the context in which they are found ... 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." At p.52 his Honour said:- "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 7 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, were said to have contributed to the liability of the employer. The presence of the trailer explained the use being made of the fork-lift, but it was the way in which the fork-lift was being used which gave rise to the 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)." In the present case, the defendant's liability to the plaintiff was within its obligation to insure pursuant to the Motor Vehicles Insurance Act if:- -- 5 of 9 -- 6 (a) the liability was in respect of the prime mover; and (b) the plaintiff's injury was caused by, through or in connection with the prime mover. This requires an examination of the factual basis of the defendant's liability to the plaintiff. The plaintiff was employed to drive the prime mover with the trailer attached and to participate in the loading and unloading of the trailer. At the time at which he was injured, he was discharging his duties pursuant to that contract. Although the matter was not canvassed in detail before me, his duty as driver of the prime mover surely required that he ensure that the load on the trailer was securely fastened. It follows that as driver of the prime mover, even apart form his loading duties, he was required to stand in proximity to the trailer. The plaintiff's employment as driver of the prime mover inevitably brought him into close physical proximity to the trailer and its load. His further duty to assist in loading re-enforces this conclusion. It follows that his injury was caused in connection with the prime mover. It also follows that the defendant's liability to him was in respect of the prime mover. The connection is both discernible and rational. The third party's submissions tended to focus upon the proposition that the prime mover and trailer should be treated as a "composite unit". This expression has been used in some of the cases, including McEwan v.Gold Coast City Council [1987] 1 Qd R 37. The majority in Technical Products used the expression, "integrated equipment". The third party's argument was that where there is a sufficiently close physical association between a registered motor vehicle and another piece of equipment, a policy effected pursuant to s.3 of the Motor Vehicles Insurance Act extends to the associated equipment. It was submitted that this is so even where the -- 6 of 9 -- 7 "associated equipment" is itself a registered motor vehicle, as in the present case. I have not found this approach to be helpful. I do not consider that the use of those expressions was meant to imply that the definition of "motor vehicle" should be extended to include such associated equipment. Rather, the expressions were shorthand descriptions of possible factual situations in which problems of this kind may arise. It will always be necessary to look for a discernible and rational connection between the liability incurred by the insured person and the registered motor vehicle in question. The defendant by election submitted that because the prime mover "played no part in the occurrence of the plaintiff's injuries", it was therefore necessary, "to look only at the insurance position with respect to the trailer." As the defendant was not the owner of the trailer, it was under no obligation to insure in respect of the trailer pursuant to the Motor Vehicles Insurance Act. Thus, it was submitted, the excepting provision of the Workers' Compensation Act could not apply simply because only an owner is obliged to insure. In one sense, the primary proposition is correct. The prime mover itself played no part in causing the plaintiff's injuries, if "occurrence" is taken to imply causation. However that is not the test prescribed by s.3 of the Motor Vehicles Insurance Act. The relevant question is whether or not the defendant's liability was in respect of the prime mover for accidental bodily injury caused by, through or in connection with the prime mover. Because of the close connection between the plaintiff's duties pursuant to his contract of employment, the prime mover and the loading operation, the defendant's liability to the plaintiff was within the risk insured against pursuant to s.3 of the Motor Vehicles Insurance Act. It therefore follows that such liability was not within -- 7 of 9 -- 8 the risk insured against pursuant to the policy under the Workers' Compensation Act. There should be judgment for the third party against the defendant by election. I will hear submissions as to costs. -- 8 of 9 -- IN THE SUPREME COURT OF QUEENSLAND TOOWOOMBA DISTRICT REGISTRY No 8 of 1988 BETWEEN: TERRENCE PAUL LE GAY BRERETON Plaintiff AND: NEIL MANSELL TRANSPORT PTY LTD Defendant AND: SUNCORP INSURANCE AND FINANCE Defendant by Election AND: THE WORKERS' COMPENSATION BOARD OF QUEENSLAND Third Party JUDGMENT - DOWSETT J Judgment delivered 05/04/1995 CATCHWORDS: Motor Vehicles Insurance Act 1936 (s.3(1)) and Workers Compensation Act 1916 (s.8(1)) - Interpretation Counsel: Mr K Boulton for the Third Party Mr N Samios for the Defendant-by-election Solicitors: Hede & Byrne for the Third Party Bernays and Bernays for the Defendant-by-election Hearing date: 23 March, 1995 -- 9 of 9 --