Donohue v Kenlaw Contracting Pty Ltd & Anor [1991] QSC 142

10 20 30 40 50 60 ~-.·:::--.:--.,.........-~ ........ ~~-- ... ~ R:..:vl:_•!=:...i C:OPlF~ /"<::-•J-D l l ·-·· "--~ · 0._n t: , I Cot,rt :::r.,,-. ,.,,., 1 ·- 1 ,, r •• I J h~r..i ... ,1 t.1 g c-.,;ur0au j L~at0,_~-~~-'± ...!..J..' J . IN THE SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION No. 634 of 1988~ SHEPHERDSON 7 --i /} L??:;;; =B=R=I=-SB=AN=E=''--"1:...:::9--=-=A=-=--P=R=I=L_1=9::....::9::....::1=-- 7 /\f/'7 ~ BEFORE MR. JUSTICE (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: ANTHONY JOHN DONOHUE Plaintiff -and- KENLAW CONTRACTING PTY. LTD. Defendant -and- FAI GENERAL INSURANCE GROUP LIMITED Third Party JUDGMENT HIS HONOUR: The plaintiff sued the defendant for damages for negligence. The claim arises out of an injury suffered by the plaintiff on 13 February 1986 in the course of his employment by the defendant as an industrial waste truck driver. The defendant admits that at the relevant time it carried on the business of refuse collection in and around Yeppoon. When the matter came on for hearing yesterday, there was, after some preliminary admissions, an ultimate admission by the defendant of liability to the plaintiff. The defendant had commenced third party proceedings against F.A.I. General Insurance Group Company Limited as insurer 1 10 20 30 40 50 60 -- 1 of 11 -- 10 20 30 40 50 60 under the Motor Vehicles Insurance Act of the truck in question, an Isuzu truck, registered number 951-0ZT. The defendant, in its statement of claim against the third party, has sought a declaration that it is entitled to an indemnity from the third party against all sums which it is liable to pay to the plaintiff including costs in respect of the action. It has sought further orders as to costs. The third party joined in the admission of liability to the plaintiff. The trial then proceeded on the issues of the quantum of the plaintiff's damages and the claims by the defendant against the third party. During this morning's proceedings, the parties announced that the action between the plaintiff and the defendant had been settled. I then gave judgment for the plaintiff against the def.endant for $185,315.22 with costs, including reserved costs, if any, to be taxed. The plaintiff's counsel withdrew and this left then the issue between the defendant and the third party. At that stage Gilbert Anthony Dyett, a witness called by the plaintiff,was still to give evidence. He had been produced for cross-examination by counsel for the defendant and the third party. On the remaining issues, I heard evidence from the plaintiff, from Dyett and an engineer named Kenneth Leslie King. The defendant's claims against the third party are based on s.3(1) of the Motor Vehicles Insurance Act 1936 - 1979, and s.8(1) of the Workers' Compensation Act. section 3(1) relevantly says: "Subject to this Act, the owner of any motor vehicle shall at all times during the registration, or as the case may be, any renewal of the registration of such 2 10 20 30 40 50 60 -- 2 of 11 -- 10 20 30 40 50 60 motor vehicle indemnify himself and all other persons and keep himself and all other persons indemnified by a contract of insurance ... with some licensed insurer against all sums for which he ... or any other such person ... shall become legally liable by way of damages in respect of such motor vehicle for accidental bodily injury ... to any other person ... ". Section 8(1) relevantly provides: "Every employer shall ensure himself and keep himself insured with the Board against all sums for which, in respect of injury to any worker employed by him, he maybecome legally liable by way of - (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 asprescribed by such other Act) damages arising undercircumstances creating independently of this Act, a legal liability in the employer to pay damages in respect of that injury". The third party admits the defendant was the owner of the truck, and that it was the licensed insurer of the truck at the material time when it is said the plaintiff's injury occurred on 13 February 1986. It is the plaintiff's case that he was injured when assisting Dyett to lift a laden wheelie bin. I come then to the facts. The wheelie bin in this matter was intended to contain, and did contain, refuse or garbage from households. The wheelie bin containing that refuse or garbage was usually collected from a householder by the defendant and emptied from the wheelie bin into a truck to which was attached a specially designed lifting apparatus. That apparatus, once the wheelie bin was placed in a specific position, lifted the:bin and up-ended its contents into the back of the truck. The apparatus then returned the wheelie bin to ground level or near ground level when an employee of the defendant removed it and wheeled it away. 3 10 20 30 40 50 60 -- 3 of 11 -- r \ 10 20 30 40 50 On the day in question, 13 February 1986, that truck was not used because the lifting apparatus was broken or damaged. As a result, the defendant required the plaintiff to drive its industrial waste truck and use that truck to collect refuse or garbage from householders' wheelie bins. The industrial waste truck was different from the truck normally used for wheelie bin refuse collection and was designed to collect and transport refuse from industrial waste bins and not wheelie bins. Exhibit 18 is a photograph of the type of industrial waste truck used on 13 February 1986. That truck has on its front, two forward facing forks and anhydraulic lifting device. The truck, when in use, carried an industrial waste bin on these two forks. On 13 February 1986 the plaintiff drove an industrial waste truck of the type shown in Exhibit 18 and there was, on the front fork$ of that truck, an industrial bin of the type shown in the photograph, Exhibit 19. That bin was carried on the front of the truck and was clear of ground level. The plaintiff had with him Gilbert Anthony Dyett, a fellow employee of the defendant. The operations of the plaintiff and Dyett that day required them to drive to certain addresses and empty the contents of the householders' wheelie bins ultimately into the back of the industrial truck. I find that procedures followed in carrying out these operations were that the plaintiff drove the truck and Dyett alighted from the truck at each stop and wheeled each wheelie bin to the front of the industrial bin carried on the forks on the front of the truck. Dyett then manually emptied the contents of the wheelie bin into the industrial bin. The industrial b1h was higher than the 10 20 3li 40 50 w w 4 -- 4 of 11 -- r-- ' 10 20 30 40 50 . 60 wheelie bin, and it was usual to lift the wheelie bin with its lid open before tipping its contents into the industrial bin. If a particular bin waa too heavy for Dyett to lift and empty on his own, then the.plaintiff alighted and assisted Dyett to lift the bin and tip and empty its contents into the industrial bin. Once the industrial bin was full, the driver of the truck operated the hydraulic lifting device so that the industrial bin, still on the forks, was raised up and carried over the top of the cabin of the truck when the contents of the industrial bin were emptied into the back of the truck. The hydraulic lifting device then returned the now empty industrial bin to its position in front of the truck and still carried on the forks. The collecting and emptying procedures then continued. On 13 February 1986 Dyett was to empty a wheelie bin which he found too heavy to lift. The plaintiff went to his aid. The plaintiff and Dyett stood on opposite sides of this wheelie bin, the plaintiff being on the left-hand side. I find that during the lifting manoeuvre both the plaintiff and Dyett were attempting to place the front lip of the wheelie bin over the lip of the industrial bin and then to lift or slide the wheelie bin upwards using the lip of the industrial bin as support, so that eventually the wheelie bin would be raised to a sufficient height where it could be emptied into the industrial bin. I find that the particular wheelie bin in fact contained earth and soil at the bottom of it such that the bin was very heavy. I find that when performing this lifting manoeuvre the plaintiff dropped h'"!:s right ·shoulder so that 5 10 20 30 40 50 60 -- 5 of 11 -- 10 20 30 40 so 60 his right shoulder was under the top of the bin nearest to his right shoulder and his right hand grasped the bottom of the wheelie bin. I find that his left hand and arm were on or under the front lip of the bin. I further find that when having got into that position the plaintiff attempted to lift the wheelie bin, he suffered his injury - an incisional hernia. I turn now to the relevant law. The principles which I have to apply are found in Technical Products Pty. Ltd. v. state Government Insurance Office (Queensland) (1989) 167 C.L.R. 45. This case has been applied and explained in subsequent decisions of the Full Court of the Supreme Court of Queensland which I shall shortly mention. In the present case, my concern is with the phrase, "in respect of such motor vehicle" in s.3(1) of the Motor Vehicles Insurance Act. In the Technical Products case, at p. 48, Justices Brennan, Deane and Gaudron said, "The effect of the words, 'in respect of such motor vehicle' in s.3(1) is to add to the requirement that the relevant accidental bodily injury be 'caused by, through, or in connection with' the motor vehicle, the further requirement that the circumstances giving rise to the relevant legal liability by way of damages for that injury show a discernible and rational link between the liability.and the particular vehicle." I pause to say that Mr. Munro, for the third party, does not argue the "caused by, through or in connection with" point and he does not suggest that the industrial bin on the front of the truck was not part of the truck. The question then is; has the defendant proved that the circumstances giving rise to the defendant's liability to the plaintiff by way of damages for the plaintiff's injury show a discernible and rational link between the liability 6 10 20 30 40 50 60 -- 6 of 11 -- 10 20 30 40 50 60 and the industrial waste truck. Mr. Reid, who appears for the defendant, and Mr. Munro disagree on this point. In Glover v. Politanski (1990) 2 Qd.R. 41, a decision of the Full Court of the Supreme Court of Queensland, the Technical Products case was followed. The Chief Justice at page 43 pointed to the obvious need to apply the principles of Technical Products to the facts of a particular case. 7 10 20 30 40 50 60 -- 7 of 11 -- ,,---. ( 10 20 30 40 50 60 His Honour considered the facts in Glover's case and at p.45 the following appears: "The plaintiff was required to as_sist in loading a utility by placing bags of cement within it. The bags had to be taken from a pallet 'carried ... for some distance to one side of the utility lifted ... up and rested ... on the side of- utility to get a firmer grip and then lifted ... higher and away from (the plaintiff) to place (the bag) in the centre of the tray of the utility.' As the plaintiff was doing just that he felt pain in his lower spine and in one buttock. It was discovered that he had sustained a significant lesion to the lumbar spine." Later at the same page His Honour said: "In ordering or permitting the operation as described,the plaintiff's employers were negligent, the learned trial judge held. " At pages 45 and 46 His Honour said this: "It is true that the defendants' legal liability flowed from the unsafe system of work which they ordered or permitted and the negligence of the defendant-was operative and capable of involving the plaintiff in injury over the whole course of the handling process from the point at which the bags were picked up to the place within the utility where they were deposited. If there had been no intention to load the vehicle the bags would not have been picked up from the collection point but if the injury to the plaintiff had occurred at the. point of pick up, I would not have been prepared to say that the damages which the plaintiff suffered could be regarded as being 'in respect of' the utility. In the words used in the Technical Productscase it would in that situation have to be said that the utility, which was some distance away from the point at which the damages were suffered, was a mere 'passive' presence at the scene. But the damages were not suffered at that point and as appears from His Honour's findings the relevant moment was the one when the plaintiff, working at stretch, was engaged in lifting forward a bag of cement to place it within the utility in a position to where the height to which it had to be lifted and the distance over which the plaintiff had to lean and stretch were precisely determined by the configurations of the utility itself as well as the dimensions of the bag. In this situation I consider that features of the utility were actively and not merely passively contributing to the damages which the plaintiff suffered so that a 'discernible and rational link' appears between the basis of legal liability and the particular motor vehicle. For these reasons r--would conclude that the -Govt. Printer, Qld. 8 .I 10 20 30 40 50 60 -- 8 of 11 -- 10 20 30 40 50 60 injury suffered by the plaintiff was within the scope of the motor vehicle insurance and in this I agree with the conclusions arrived at by Ryan J." Mr. Justice Ryan in the same case said (at page 49): "It can however be said that in general there will be a discernible and rational link between legal liability for failing to provide a safe system of work in loading a vehicle and the motor vehicle in question if the work involves the actual act of loading the vehicle. The risk to which the plaintiff was exposed was not merely a risk of injury through handling bags of cement; it was a risk of injury through handling them for the purpose of loading them onto a vehicle. That suffices in my opinion to make the liability one with respect to the vehicle." It is clear from Glover's case that the Full Court · analysed fairly closely the findings of the trial judge as to exactly at what stage the injury occurred. Similarly, in Novak v. Meggitt Limited (1990) 2 Qd.R. 170, another decision of the Full Court, a close examination of such findings was undertaken. In the present case the truck which the plaintiff was driving was, in effect, a mobile collection point into which the contents of wheelie bins were placed by unloading the wheelie bins. The defendant's system of work required the plaintiff and Dyett to collect the contents, which contents were emptied in the manner I have found. As I have already found, the system of work required each wheelie bin to be lifted so that it was above the level of the industrial bin on the front of the vehicle and could then be emptied into that bin. The present case shows that the risk to which the plaintiff was exposed was not simply a risk of injury through handling heavy wheelie bins when only asked by Dyett to help. He was exposed to a risk of injury through handling the wheelie bin for the purpose of unloading the contents of the whee:lie bins into the vehicle -Govt. Printer, Qld. 9 10 20 30 40 50 60 -- 9 of 11 -- 10 20 30 40 so 60 whose special purpose was to collect and carry away those contents. It was only during that act of unloading the wheelie bin contents where a particular bin was too heavy for Dyett to manage alone that the plaintiff was, in the course of his duties, required to help Dyett and injured. In my view there is in the present case a discernible and rational link between the basis of legal liability in the defendant and the truck into part of which the plaintiff, when assisting Dyett, was unloading or attempting to unload the contents of the wheelie bin. In my view the defendant has made out its case against the third party. I therefore declare that the defendant is entitled to an indemnity from the third party against all sums which the defendant is liable to pay to the plaintiff, in particular, the judgment debt of $185,315.22 and the amount of the plaintiff's costs of and incidental to the action, including reserved costs, if any, to be taxed, which I have already ordered the defendant to pay to the plaintiff. MR. REID: Your Honour, there is one matter. Your Honour has ordered that they indemnify us to the extent of the judgment sum. In fact, I think it's agreed between my learned friend and I that the indemnity· should be to the extent of $195,000 because the $9,000-odd which was the workers' Compensation sum has been paid solely by us at this stage. HIS HONOUR: Is that correct? MR. MUNRO: That's correct, Your Honour. HIS HONOUR: Having been asked by Mr. Reid and Mr. Munro to do so, as the transcript will show, I further order that I include in the declaration the further sum of $9,684.78 being the amount of the Workers' Compensation charge which, as I mentioned this -morning, has been deducted -Govt. Printer, Old. 10 10 20 30 40 50 60 -- 10 of 11 -- (-: -I 10 20 30 40 50 60 from the damages suffered by the plaintiff to arrive at a net figure of $185,315.22. HIS HONOUR: I make an order in terms of the defendant's statement of claim that the third party pay the defendant's costs of and incidental to the plaintiff's action against the defendant herein and the defendant's costs of and incidental to the third party's proceedings, to be taxed. • Govt. Printer, Qld. 11 10 20 30 40 50 60 -- 11 of 11 --