Brownlee v D & M Chapman Industries Ltd & Anor [1993] QSC 188

lJ IN THE SUPREME COURT OF QUEENSLAND No. 795 of 1988 BETWEEN CATCHWORDS: . COUNSEL: ERNEST JAMES BROWNLEE D & M CHAPMAN INDUSTRIES LTD FAI GENERAL INSURANCE CO LTD JUDGMENT - MOYNIHAN J Mr S R Blaxland for the plaintiff Mr R M Stenson for the defendant Mr R Myers for the third party Plaintiff Defendant Third Party SOLICITORS: Stubbs Bonutto Barbeler Grant, town agents for Barbeler & Cook for the plaintiff Cleary & Hoare for the defendant Clayton Utz for the third party HEARING DATE: 12 July, 1993 -- 1 of 5 -- () () u IN THE SUPREME COURT OF QUEENSLAND No. 795 of 1988 BETWEEN ERNEST JAMES BROWNLEE D & M CHAPMAN INDUSTRIES LTD FAI GENERAL INSURANCE CO LTD JUDGMENT - MOYNIHAN J Delivered the 19th day of July, 1993 Plaintiff Defendant Third Party At the commencement of these proceedings the defendant submitted to judgment in the amount of $156,068.81 which reflected the damages agreed as between the plaintiff and the defendant less the workers' compensation refund. Other considerations aside, the third party accepted the damages as appropriate to the injuries suffered by the plaintiff. There remains to be determined an issue between the Workers' Compensation Commission and the Third Party, the licensed insurer under the Motor Vehicles Insurance Act 1936. -- 2 of 5 -- --- - -------- 'I I 2 The issue turns on whether or not there is a "legal liability in respect of" a particular motor vehicle in terms Section 3( 1) of the Motor Vehicles Insurance Act. The issue arises for consideration in the following circumstances: The plaintiff sued the defendant for damages as a consequence of an injury he suffered in the course of his employment. He was employed by the defendant as a storeman and what I would describe as "general hand" in its business which was apparently that of hardware or building material suppliers. On 25 May, 1985 the plaintiff had picked up a bag of cement from a loading dock on the defendant's premises. lt was of the order of 40 kg in weight and approximately 24" by 30" in length and breadth. Having picked up the bag, the plaintiff commenced to make 0 a turn necessary to deposit it on the tray of a truck some 3 or 4 feet away from the edge of the loading dock. When he was about half way through the turn his left foot slipped out from under him and he suffered excruciating pain caused by the injury the damages attributable to which are reflected in the judgment. I am satisfied that this occurred because of cement dust residue which was on the floor () of the dock and, as may be inferred from the outcome of the proceedings to which I have referred, was caused by the negligence of the defendant. The tray of the 0 truck was higher than the edge of the loading dock by a measure of which it is impossible to be confident, but which was probably of the order of a foot or so higher than the edge of the loading dock. That had, however, no bearing on the injury suffered by the plaintiff. Before turning to consider the issue as to liability as between the Workers' Compensation Commission and the Third Party it is necessary, to make a number of findings in addition to those set out above. -- 3 of 5 -- 3 I am satisfied that the motor vehicle upon which the plaintiff intended depositing the load was a registered Datsun Homer 1.5 tonne motor vehicle registered no. 901 NTK. I am further satisfied that the defendant was an insured person within the meaning of the Motor Vehicles Insurance Act in respect of the vehicle but that D & M Chapman Industries was registered in the records of the Commissioner of Main Roads as the owner of the vehicle. lt was not seriously contended on the defendant's behalf that the occurrence was other than "in connection with" a motor vehicle. The outcome therefore turns upon whether the circumstances in which the plaintiff was injured connoted "a legal liability in respect of the motor vehicle". The test for satisfying that requirement is whether there was "a discernible and rational link" between the basis of the liability of the defendant and the motor vehicle; Technical Products Pty Limited -v- S.G.I.O. (Queensland)( 1988) 167 C.L.R. 45 at 47. This case seems to me to be the obverse of the situation considered by the Full Court in Glover -v- Politanski ( 1990). 2 Qd.R. 41. In that case it had been found that the injury was suffered as a consequence of it being necessary for the injured person to lean and L) stretch to lift the bag onto the tray of a utility "precisely" because of the configuration of the utility. lt is therefore not surprising that it was concluded that the liability was "in respect of" the utility. Macrossan CJ (with whom Kelly SPJ agree - the third member of the court, Ryan J, does not differ in any material respect) was of the view that had the injury occurred at the point of pickup it would not have been "in respect of" the vehicle. In ~hat circumstance the vehicle would have been what was described in Technical Products Pty Limited as a "mere passive presence" at the scene. Novak -v- Megitt Limited 1990 2 Qd.R 170 is a -- 4 of 5 -- 4 case where a different factual situation had a different outcome. Fraser -v- Southeast Queensland Electricity Board and Suncorp Insurance and Finance ( 1991) 6 ANZ Insurance Cases 61-056 (a decision of the Full Court) viewed Technical Products as requiring, in terms of S.3( 1) of the Motor Vehicles Insurance Act, a relationship between the motor vehicle and "the very act or omission" giving rise to the liability in question. On the facts of that case the Full Court concluded that the act or omission establishing liability in the employer was another employee removing stays from a pole causing the injured employee to leap from a cherry () picker attached to a motor vehicle. The necessary connection was missing in those circumstances. () On the view I take of this case, by reason of the mechanism by which the plaintiff suffered his injury, I do not think that the motor vehicle had come into consideration. lt was a mere "passive presence" at the scene. lt follows that in my view the third party is not required to provide any indemnity in respect of the damage suffered by the plaintiff. The third party 0 proceedings should be dismissed and, no consideration to the contrary having been drawn to my attention, the defendant should pay the third party's costs of and 0 incidental to the proceedings to be taxed. -- 5 of 5 --