Campbell v International Rigging (Aust) Pty Ltd & Ors [1991] QSCFC 26

10 '20 40 50 60 30 IN THE SUPREME COURT OF QUEENSLAND FULL COURT BEFORE: — “ Mr. Justice McPherson S.P.J. Mr. Justice Derrington Mr. Justice Moynihan BRISBANE, 20 FEBRUARY 1991 Appeal No. 51 of 1990 REVISED COPUS -ISSUED [ Court Rcpcrtinc; Bureau f Date Ji /S/.gl | (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Chief Court Reporter,Court Reporting Bureau.) BETWEEN: ROSS LESLIE CAMPBELL (Plaintiff) -and- INTERNATIONAL RIGGING (AUST.) PTY.LTD. (Defendant) -and- THE WORKERS' COMPENSATION BOARD OF QUEENSLAND (Defendant by election) -and- SUNCORP INSURANCE AND FINANCE (Third Party) ORDER Appellant Appellant Respondent MR. JUSTICE DERRINGTON: This is an appeal by the Workers' Compensation Board of Queensland against a decision of the learned trial judge in an action by the plaintiff against the defendant, who was his employer, for damages for personal injury caused by the negligence of the employer. The learned trial judge found that the employer was, indeed, negligent and that the negligence consisted of a failure to provide a safe place of work in that in the course o=ab 10 20 30 40 50 60 Govt. Printer, Qld. l [1991] QSCFC 26 -- 1 of 6 -- i of taking part in an operation involving the unloading of a load carried by a mobile crane, the plaintiff moved backwards and fell over a pallet that was~lying on the ground in the working place. His Honour found as follows: 10 20 "The view I take is that the crane's 'involvement' in the scenario which leads to the defendant ' s being liable to the plaintiff in damages is merely, as it were, as part of the 'narrative' or 'background' to the accident. In this case, in my view, the defendant's liability arises because of the dangerous state of the immediate area in which the plaintiff was required to work. It was the poor housekeeping - the failure to clean the work area and to heed complaints about it which lie at the root of the defendant ' s failure to take proper care for the plaintiff. The accident would have happened, it seems to me, had the pipe been lowered from an 'ordinary' crane such as one sees on many building sites or, indeed, had it been lowered by means of a block and tackle. There is no evidence, in my opinion, of any want of care by the defendant or anyone for whose acts or omissions it might be liable in so far as the positioning or operation of the crane is concerned." 10 20 He had found earlier that the work done in relation to the 30 40 50 use of the crane was impeccable, so that the only basis of liability was that the work area in which the unloading process took place was cluttered and dangerous for that task. As with many cases of this nature, a dispute has arisen between the Workers' Compensation Board which was the compulsory insurer of the employer under the Workers' Compensation Act and the insurer of the mobile crane as to where liability lay between them. It is not challenged that one or other of them is liable to indemnify the employer, but the question is which. Again, as in many of these cases, the essential question is whether the liability of the employer could be said to be "in respect of" the motor vehicle, because the Workers ' Compensation policy excludes liability on the part of the insurer to indemnify the insured against his liability in those cases where the insured was required, by 30 40 50 60 Govt. Printer, Qld. 2 60 -- 2 of 6 -- 1 I 10 ~3t*> 30 40 50 some other Act, to keep himself insured against such liability; and the obligation on the employer in this case to keep himself indemnified was- only in respect of liability which arose "in respect of" the vehicle. We have been referred to many cases which have been more or less helpful, but essentially the matter comes back to the decision of the High Court in Technical Products Pty. Ltd, v. The State Government Insurance Office (Queensland) (1988) 167 C.L.E. 45 which was adverted to by His Honour the learned trial judge. He correctly directed his attention to the proposition whether there was, as the High Court put it, a rational connection between the liability of the employer and the vehicle. The test has also been correctly identified by McPherson J., as he then was, in Tonga v. John Holland Constructions Pty. Ltd. ( reported as S.G.I.O. (Queensland) v. Workers’ Compensation Board of Queensland) (1987) 4 A.N.Z. Insurance Cases 74893 at p.74895 to the effect that the act or omission constituting the negligence must be related to the vehicle. With that view I respectfully agree. In the present case the liability of the employer was essentially found in the employer's failure to provide a safe place of work. It is true that the safe place of work related to the unloading of the vehicle and, in a way, it might be possible to formulate the employer's liability by way of saying that it was due to its failure to provide a safe place of work for the unloading of this vehicle and thus attempt to draw the connection in that way. But that is insufficient. The act or omission which constituted the negligence did not have any relationship with the vehicle itself or even, if it were 10 20 30 40 50 60 Govt. Printer, Qld. 3 60 -- 3 of 6 -- 1 1 20 30 40 necessary in this case, with its load, but I do not have to decide that for the purposes of this case. The connection with the vehicle" is much too tenuous. It is not enough that it be possible to formulate the liability of the employer in such a way as to be able to mention the vehicle. The connection must be much closer and the negligent act itself must relate to the vehicle. This view is in conformity with the findings in all the cases which have been reviewed here and it is not necessary or desirable to add to the growing volume of judicial statements upon the point. I have attempted to formulate the matter as a statement of principle particularly applicable to this case and it is not necessary to take the case further. In my view, it is abundantly clear that the test that was formulated by the High Court in the Technical Products' case has not been met here and, without hesitation, I am of the view that the appeal should be dismissed with costs. My judgment should not be taken to have indicated that it would be impossible for a finding to be made that the liability was in respect of the vehicle in every case where the injury occurred as the result of an unsafe place of work. Such a finding of connection between the liability and the vehicle could be made, providing for example that the unsafe place of work was in some way brought about by the way in which the vehicle was managed. 10 o 30 50 MR. JUSTICE McPHERSON: I agree. The mere fact that the liability arises in the course of an operation in which a vehicle plays a part is not enough to constitute it as a liability in respect of the motor vehicle, for that would be no more than to suggest a temporal connection or relation with 50 60 60 Govt. Printer, Qld. 4 -- 4 of 6 -- 1 1 10 •the vehicle which, it is plain, is not enough to satisfy the statutory requirement. Authority lays down that there must be a discernible and rational link - between the defendant' s legal liability and the motor vehicle in question. In the present case the legal liability consists in a breach of duty by the defendant employer to provide a safe system of work; but that is to express the matter in a form that is too imprecise and general to be of assistance in resolving the present problem. It is necessary to go further and ask what was the very act or omission that gave rise to that failure and, therefore, to the consequential legal liability that arose in this case (see on this Technical Products Pty. Ltd, v. S.G.I.O. (1989) 167 C.L.R. 45, at 48, 10 20 52. ) 30 40 50 Here His Honour found that the decisive act or omission was the provision by the defendant employer of a place of work that was in a dangerous state. It was, His Honour said, "poor housekeeping - the failure to clean the work area and to heed complaints about it which lie at the root of the defendant's failure to take proper care for the plaintiff". In this there is no finding that the system of using or unloading the crane that was adopted by the defendant in the present case was the source of the defendant's liability. On the contrary, His Honour went on to make an affirmative finding to the opposite effect: "There is no evidence, in my opinion, of any want of care by the defendant or anyone for whose acts or omissions it might be liable in so far as the positioning or operation of the crane were concerned." In the light of that finding and the other finding to which I have referred, this cannot be said to be a case in which the very act or 30 40 50 60 Govt. Printer, Qld. 60 5 -- 5 of 6 -- 1 Wfc. 10 20 30 40 50 60 omission was one which disclosed a connection with, or a discernible and rational link with, the legal liability. Some reference was made in the-course of argument to cases involving liability arising out of the loading and unloading of vehicles. I am by no means persuaded that this case typifies instances of that kind. It is therefore not the occasion for a close examination of those decisions, but it may be an explanation of the apparently more ready acceptance of a connection in circumstances of that kind that a vehicle is essentially, by virtue of its function, a conveyance for moving people or things; and, since unloading is a critical element in the performance of that function, a breach of duty giving rise to legal liability in the course of that activity is more likely to suggest a connection than would be the case were the vehicle being repaired or used in some fashion other than by loading or driving it. In my view, the appeal, which was essentially one of fact or inference, ought not to succeed. The learned judge is not shown to have been wrong in his conclusion on this matter. I would dismiss the appeal with costs. MR. JUSTICE MOYNIHAN: I agree with the order proposed for the reasons given to sustain it. MR. JUSTICE McPHERSON: The order is that the appeal is dismissed with costs. Govt. Printer, Qld. 6 -- 6 of 6 --