IN THE SUPREME COURT OF QUEENSLAND No. 46 of RAYMOND WILLIAM SHEPHERD, JOHN WILLIAM SHEPHERD ROSS ALEXANDERS SHEPHERD and IAN RAYMOND SHEPHERD

Transcription

1 IN THE SUPREME COURT OF QUEENSLAND No. 46 of 1995 MACKAY DISTRICT REGISTRY BETWEEN: MERVYN HAROLD REEVES Plaintiff AND: RAYMOND WILLIAM SHEPHERD, JOHN WILLIAM SHEPHERD ROSS ALEXANDERS SHEPHERD and IAN RAYMOND SHEPHERD First Defendant AND: SUNCORP INSURANCE & FINANCE Second Defendant AND: WORKERS' COMPENSATION BOARD OF QUEENSLAND Defendant by Election JUDGMENT - DEMACK J. DELIVERED the 19th day of April, 1996 The plaintiff alleges that he was injured on 23 October 1994 in the course of his employment with the first defendant. At the time, he was driving a tractor and Ian Raymond Shepherd, one of the first defendant, was driving another tractor registered number L-103. The second defendant is the insurer of both tractors. The defendant by election is the common law insurer of the first defendants. I ordered that the legal issues between the second defendant and the defendant by election be determined before the trial of the action. For these purposes, the following facts were agreed: 1. The four persons named as First Defendant were the employers of the Plaintiff.

2 2. The subject collision occurred on private property and not a dedicated road. 3. The Chamberlain Tractor L-7103 was used on dedicated roads from time to time. 4. In respect of the Chamberlain Tractor L-7103 (a) (b) (c) The registered owner was R.W. Shepherd & Son; The due date for renewal of registration was 7th May Registration and insurance were paid on the 19th May (d) The due date for the next renewal was 7th May (e) The tractor was insured under insurance class The proprietors of R.W. Shepherd & Son were Muriel Shepherd (wife of Raymond William Shepherd), Ross Alexander Shepherd who is the third named First Defendant, and Raymond William Shepherd who is the first named First Defendant. 6. As at the 23rd October 1994 the Chamberlain Tractor L-7103 was owned by the partnership R.W. Shepherd & Son and had been so owned since the 13th February 1987 and was hired to the cane farm partnership which consisted of the four named First Defendants. IN THE SUPREME COURT OF QUEENSLAND No. 46 of 1995 MACKAY DISTRICT REGISTRY BETWEEN: MERVYN HAROLD REEVES Plaintiff AND:

3 RAYMOND WILLIAM SHEPHERD, JOHN WILLIAM SHEPHERD ROSS ALEXANDERS SHEPHERD and IAN RAYMOND SHEPHERD First Defendant AND: SUNCORP INSURANCE & FINANCE Second Defendant AND: WORKERS' COMPENSATION BOARD OF QUEENSLAND Defendant by Election JUDGMENT - DEMACK J. DELIVERED the 19th day of April, 1996 CATCHWORDS: Insurance - Motor Vehicle - Policy renewed before Motor Accident Insurance Act came into force - Provisions of Motor Vehicles Insurance Act apply. Insurance - Tractor - Not used principally to transport goods on road - Injury not on road - Workers' Compensation Board liable - Owner of vehicle not employer. COUNSEL: P. Ambrose Second Defendant J. Griffen Q.C. Defendant by Election SOLICITORS: Bradley & Co Second Defendant John Taylor & Co Defendant by Election HEARING DATE: 22nd day of March, There are two questions that need to be answered. 1. As at 23 October 1994, did the provisions of the Motor Vehicles Insurance Act 1936 ( the old Act ) or the provisions of the Motor Accident Insurance Act 1994 ( the new Act ) contain the relevant terms and conditions of the statutory policy of insurance in

4 respect of the tractor registered number L-7103 ( the tractor )? 2. On the admitted facts is the second defendant and/or the defendant by election bound to indemnify the first defendant in respect of any award of damages the plaintiff may recover? 1. Old Act or New Act The injury in respect of which the plaintiff sues was sustained on 23 October The new Act came into force on 1 September 1994, having received assent on 7 March The policy in respect of the tractor was renewed under the provisions of the Old Act on 7 May, 1994 for a period of twelve months. The relevant provisions of the New Act are: Objects 3. The objects of this Act are (a) (b) (c) (d) (e) to continue and improve the system of compulsory third-party motor vehicle insurance, and the scheme of statutory insurance for uninsured and unidentified vehicles, operating in Queensland; and to provide for the licensing and supervision of insurers providing insurance under policies of compulsory third-party motor vehicle insurance; and to encourage the speedy resolution of personal injury claims resulting from motor vehicle accidents; and to promote and encourage, as far as practicable, the rehabilitation of claimants who sustain personal injury because of motor vehicle accidents; and to establish and keep a register of motor vehicle accident claims to help the administration of the statutory insurance scheme and the detection of fraud; and

5 (f) to promote measures directed at eliminating or reducing causes of motor vehicle accidents and mitigating their results. Application of this Act 5. (1) This Act applies to personal injury caused by, through or in connection with a motor vehicle if, and only if, the injury (a) is a result of (i) the driving of the motor vehicle; or (ii) a collision, or action taken to avoid a collision, with the motor vehicle; or (iii) the motor vehicle running out of control; or (iv) a defect in the motor vehicle causing loss of control of the vehicle while it is being driven; and (b) is caused, wholly or partly, by the wrongful act or omission of a person other than the injured person. (2) However, this Act does not apply to personal injury caused by, through or in connection with (a) an uninsured motor vehicle; or (b) a backhoe, bulldozer, end-loader, forklift, industrial crane or hoist, or other mobile machinery or equipment; or (c) (d) (e) (f) an agricultural implement; or a motor vehicle adapted to run on rail or tram tracks; or an amphibious vehicle; or a motor vehicle of a class prescribed by regulation;

6 unless the motor vehicle accident out of which the injury arises happens on a road. Statutory policy of insurance 23. (1) When transport administration registers or renews the registration of a motor vehicle (a) (b) a policy of insurance in terms of the Schedule comes into force for the motor vehicle when the registration or renewal of registration takes effect; and the licensed insurer selected under this Part in or in relation to the relevant application is the insurer under the policy. Existing insurance contracts 104. (1) A contract of insurance in force under the former Act immediately before the commencement of this Act continues in force until (a) (b) the contract is replaced by a CTP policy under this Act; or 30 days after the end of the registration period to which it related; whichever happens first. (2) If personal injury arises out of a motor vehicle accident happening before the commencement of this Act, a claim for the personal injury must be dealt with as if this Act had not been enacted. (3) If personal injury arises out of a motor vehicle accident happening on or after the commencement of this Act, a claim for the personal injury must be dealt with under this Act (even though the accident may have happened

7 while a policy of insurance issued under the former Act remains in force). (4) This section expires on 31 December Schedule Extent of insurance cover 1. (1) This policy insures against liability for personal injury caused by, through or in connection with the insured motor vehicle anywhere in Australia. (2) This policy extends to liability for personal injury caused by, through or in connection with a trailer attached to the insured motor vehicle or that results from the trailer running out of control after becoming accidentally detached from the insured motor vehicle. (3) The liability mentioned in subsection (1) of (2) (a) (b) is a liability for personal injury to which the Motor Accident Insurance Act 1994 applies (See section 5 of the Act); and includes the liability of a tortfeasor to make a contribution to another tortfeasor who is also liable for the personal injury. (4) This policy does not insure a person (the injured person ) against injury, damage or loss (a) (b) that arise independently of any wrongful act or omission; or to the extent that the injury loss or damage is attributable to the injured person's own wrongful act or omission. Insured person

8 2. The person insured by this policy is the owner, driver, passenger or other person whose wrongful act or omission causes the injury to someone else and any person who is vicariously liable for the wrongful act or omission. Exclusions 3. (1) This policy does not insure an employer against a liability to pay worker's compensation. (2) This policy does not insure against a liability to pay exemplary or punitive damages. By s.102 of the New Act, which is not reprinted in the current reprint of the New Act, the Old Act was repealed. This section came into effect on 1 September The argument Mr Griffin Q.C. advanced on behalf of the defendant by election concentrated upon the combined effect of ss. 102 and 104(3). He submitted that, as at 1 September 1994, the Old Act ceased to have any effect, except in relation to personal injuries already suffered. These involved accrued rights which are protected by s. 20(2)(c) of the Acts Interpretation Act In his submission, the phrase, a claim for the personal injury, embraces all aspects of the claim, including the extent of the cover in respect of personal injury provided by the insurance policy. The provisions of s. 104(1), on this submission, mean only that there is no need to take out a fresh policy or pay an additional premium. In my opinion, this is not correct. Section 3 of the New Act sets out six objects of which, (c) - speedy resolution of claims - and (d) - promotion of rehabilitation introduce new concepts into third party insurance in Queensland. These are set out in some detail in Part 4 of the New Act which bears the heading Claims. With the exception of Division 7, Part 4 is concerned the way in which claims for personal injuries are to proceed and, to a lesser extent, how rehabilitation is to be achieved. It is consistent with the scheme of the Act that

9 Part 4, with the exception of Division 7, furthers objects (c) and (d) in s.3. It should also be noted that s.104 is in Part 7 which bears the heading Transitional Provisions. Part 7 comprises ss.104 to 108. Section 105 extends existing licences to insurers until 31 December The New Act provisions relating to licensing insurers are found in Part 5. Section 106 contains transitional provisions for the Nominal Defendant. Section 107 contains provisions for continuity in respect of selection of insurers, a matter dealt with in Division 2 of Part 3 of the New Act. Like s.104, s. 107 expires on 31 December Section 108 contains transitional provisions in respect of levies, administration fees and premiums. This section expired on 1 July 1995, because such charges are fixed for the financial year (s.15). In my opinion, these other sections in Part 7 show the scheme of the transitional provisions in the New Act, and assist in construing s.104. By s.104(1) a contract of insurance under the Old Act continues in force until it is replaced by a contract under the New Act, or until it lapses. The effect of s.23(1) is that, when the registration of a motor vehicle is renewed after 1 September 1994, a policy under the New Act takes effect. That new policy is in the terms of the Schedule to the New Act, which defines the extent of the cover by reference to s.5. That is a specific provision in the New Act which fixes the time at which the provisions of s.5 become part of the policy of insurance. It follows from this that until the policy under the New Act comes into effect at the renewal of the registration, the provisions of the Old Act, in respect of the extent of the cover provided by the policy, continue in force. Section 104(2) preserves the rights that had accrued under the Old Act. It expresses specifically what is generally provided for by s.20(2)(c) of the Acts

10 Interpretation Act In my opinion, s.104(3) requires a person who suffers personal injuries on or after 1 September 1994 to pursue any claim under the provisions of Part 4 and also requires the licensed insurer to provide rehabilitation. The words in parenthesis - (even though the accident may have happened while the policy of insurance issued under the former Act remains in force) - emphasise this because they recognise the continuing effect of the terms of the existing policy under the Old Act. In other words, the New Act puts upon both the licensed insurer and the injured person new obligations about procedures and rehabilitation, but the existing statutory cover remains in place. For these reasons, I am of the opinion that the relevant terms and conditions of the statutory policy of insurance in respect of the tractor are found in the Old Act. 2. Who is bound to indemnify the first defendants? This question involves a consideration of both s.2(3) and s.3(1) of the Old Act. The relevant provisions in those sections were introduced in A. Section 2(3) Section 2(3) of the Old Act reads: Accidental bodily injury (fatal or non-fatal) caused by a motor vehicle that is a back-hoe, bulldozer, endloader, fork-lift, mobile crane or hoist, or other mobile machinery on or after 22 September 1988 is not an injury to which any provision of this Act applies unless the injury is caused on land dedicated as road according to law. Here the injury was not caused on land dedicated as road according to law. If the tractor is a motor vehicle that is other mobile machinery, then any accidental bodily injury the plaintiff suffered is not an injury to which the Old Act applies.

11 By s.2 of the Old Act, motor vehicle means: Any vehicle propelled by gas, motor spirit, oil, electricity, steam or any other motive power: the term includes a tractor, trailer, motor bicycle or motor cycle, but does not include a railway or tramway locomotive, tram motor, tram car, trolley bus, air cushion vehicle, fire engine, fire reel, or any machinery especially designed for roadmaking The primary meaning given describes a vehicle which is equipped with its own means of propulsion. The definition includes tractor. Tractor is defined as: A power-driven vehicle used or intended to be used for haulage purposes but not built to carry passengers or loads other than fuel or water for its own consumption, but not including any such vehicle which is driven by steam power By s.2 of the Old Act mobile machinery does not include a vehicle used principally for the transport of goods or substances on roads. This is means that to some extent the exclusions to the definition of tractor are similar to those to the definition of mobile machinery. The most significant difference is the reference to roads in the definition of mobile machinery. The definition was introduced in 1988 at the same time as s.2(3), so that there is a clear intention to exclude from the cover provided by the Old Act certain injuries caused by some motor vehicles which occur other than upon dedicated roads. This intention is expressed in s.2(3) by the exclusion of injuries caused other than on land dedicated as a road and in the definition of mobile machinery by excluding vehicles used principally on roads. From all these provisions it follows that a tractor is a motor vehicle used for haulage purposes. By that definition a tractor could be designed principally for the transport of goods on roads. If that were so, such a tractor would not be mobile machinery. However, a tractor

12 could also be used for haulage purposes in and around a farm, and as such would not be designed principally for the transport of goods on roads. From the pleadings, the tractor was being used to haul cane bins on 23 October It was admitted that the tractor was used on dedicated roads from time to time. From this, Mr Ambrose, for the second defendant, drew the inference that it was not used principally for the transport of goods or substances on roads. I shall proceed on the basis that that is so. Counsel assured me there was a strong desire to agree on the facts for the purposes of this application. If I have gone beyond the agreed facts in accepting the inference that the tractor was not used principally for the transport of goods or substances on roads, I grant the parties leave to re-argue the matter through written submissions. Accepting, then, that the tractor was not designed principally for the transport of goods on roads, it is not excluded from the description of mobile machinery by s.2 of the Old Act. Is it, then, mobile machinery? Mr Ambrose sought to support his argument in favour of an affirmative answer by reference to the classification of vehicles under the Motor Vehicles Insurance Regulations The tractor was insured under class 6. Class 6 is described as mobile machinery including cranes, forklifts, backhoes, tractors and agricultural machinery. The Regulations include a note, Insurance cover applies only on land dedicated as road. While it is an interesting argument, which I shall not set out in detail, it does not seem to me to be of any assistance in construing s.2(3). In s.2(3) the list is back-hoe, bulldozer, endloader, fork lift, mobile crane or hoist, or other mobile machinery. In class 6 the list is mobile machinery including cranes, forklifts, backhoes, tractors and agricultural machinery. The inclusion of tractors in the latter list cannot mean that its absence from the former

13 list is explained by the fact that tractors are included in mobile machinery. All of the other named vehicles are included in the concept of mobile machinery in the latter list, except bulldozers and mobile hoists. In my opinion, the significant phrase is not mobile machinery but other mobile machinery. In other words, all of the vehicles named in s.2(3) are properly described as mobile machinery and other vehicles not named may also properly be so described in certain circumstances. Because a tractor could be designed principally for the transport of goods or substances on roads it would not be appropriate to include it in the list in s.2(3), because such a characteristic would mean it fell outside the concept of mobile machinery. Within the diversity of the way in which cane is harvested, it is conceivable that a tractor used by one farmer might be used principally for the transport of cane on roads, while a nearby farm may have such access to a tramway siding that any tractor used on that property would rarely transport cane on roads. For this reason the inference I have previously referred to is critically important. In my opinion, a tractor which is not used principally for the transport of goods upon roads is mobile machinery within the meaning of s.2(3) of the Old Act. A tractor is mobile and it is a machine, and so is properly described as mobile machinery. B. Section 3(1) At the relevant time, s.3(1) and (2) of the Old Act provided: Insurance by owners of motor vehicles 3. (1) 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 motor vehicle indemnify and keep indemnified the owner and every authorised agent of the owner by a contract of insurance with the State Government Insurance Office (Queensland) or with some licensed insurer against all sums for which the owner or his estate or any such

14 authorised agent or his estate shall become legally liable by way of damages in respect of such motor vehicle for accidental bodily injury (fatal or non-fatal) to any person (including, in respect of such injury caused by any such person, the owner himself) in any State or Territory of the Commonwealth of Australia where such injury is caused by, through, or in connection with such motor vehicle. Liability by way of damages referred to in the first paragraph of this subsection includes the liability (either joint or several) of an insured person (a) (b) to pay or to contribute to the payment of such damages; to make contribute to any other tortfeasor under the provisions of The Law Reform (Tortfeasors Contribution, Contributory Negligence, and Division of Chattels) Act 1952; (c) to pay damages for breach of his contract of employment evidenced by his causing such injury. Liability by way of damages referred to in the first paragraph of this subsection does not include the liability of an employer incurred on or after 22 September 1988 to pay damages on account of accidental bodily injury (fatal or non-fatal) caused by, through or in connection with a motor vehicle to his employee (being a worker within the meaning of the Workers Compensation Act ) in circumstances such as would give rise to an entitlement to the payment of compensation under that Act. (2) For the purposes of any such contract of insurance and of every claim for accidental bodily injury (fatal or non-fatal) to any person caused by, through or in connection with a motor vehicle insured thereunder, every person, other than the owner, who at any time is in charge of such motor vehicle, whether or not with the owner's authority, shall be deemed to be the authorised agent of the owner, and to be acting in relation thereto within the scope of his authority as such agent: Provided that if at the time when any such claim arose the motor vehicle was in charge of or being driven by any

15 person for whose acts or omissions at such time the owner apart from the provisions of this subsection would not have been liable, the liability of the owner under this section shall be limited to the amount for which he shall be entitled to be indemnified against such claim under the said contract. In Lorimer v. Thatcher (1993) 2 Qd.R. 25, at 28, the Court of Appeal said: The phrase liability by way of damages referred to in the first paragraph of this subsection in the third paragraph of s.3(1) is a reference to the legal liability by way of damages of the owner or any authorised agent of the owner (or the estate of either) referred to in that first paragraph; that is, it is the legal liability by way of damages of the owner or his authorised agent which in the third paragraph is expressed not to include the liability of an employer to pay damages in circumstances which would give rise to an entitlement to the payment of compensation under the Workers' Compensation Act The only legal liability of the first kind which would otherwise include liability of the second kind is liability of the owner or authorised agent as an employer, which requires that the owner or authorised agent also be the employer. It must be this that is referred to in the third paragraph of s.3(1). Here the owner of the tractor was R.W. Shepherd & So, the proprietors of which were Muriel Shepherd, Ross Alexander Shepherd who is the third named first defendant and Raymond William Shepherd who is the first named first defendant and the tractor was registered in that name. The four persons named as first defendant were employers of the plaintiff. One of them, Ian Raymond Shepherd, was driving the tractor at the relevant time. In those circumstances, Mr Griffin Q.C., for the Workers' Compensation Board observed: So it's not a case in which the employer was either the owner of the vehicle or the authorised agent of the owner. The owner of the vehicle was the partnership, or the members of the partnership, R W Shepperd and Sons, and the authorised agent was Ian Shepperd who was not the employer of Reeves.

16 The employer of Reeves was the partnership consisting of the four defendants who have been named as first defendant in the action. Consequently, both under s.2(3) and 3(1) of the Old Act the policy of insurance does not cover an injury sustained in the circumstances of the admitted facts. I find that the Workers' Compensation Board of Queensland is the appropriate insurer in this action. The second defendant is dismissed from the action. I order that the defendant by election pay the taxed costs of the second defendant of the action. Liberty to apply.