SUPREME COURT OF QUEENSLAND

Transcription

1 SUPREME COURT OF QUEENSLAND CITATION: Nominal Defendant v Duntroon Holdings P/L [2008] QCA 183 PARTIES: NOMINAL DEFENDANT (plaintiff/respondent) v DUNTROON HOLDINGS PTY LTD ACN (defendant/appellant) FILE NO/S: Appeal No of 2007 SC No 1020 of 2006 DIVISION: PROCEEDING: ORIGINATING COURT: Court of Appeal General Civil Appeal DELIVERED ON: 11 July 2008 DELIVERED AT: Supreme Court at Brisbane Brisbane HEARING DATE: 26 May 2008 JUDGES: ORDER: Keane and Holmes JJA and Philippides J Separate reasons for judgment of each member of the Court, Keane JA and Philippides J concurring as to the orders made, Holmes JA dissenting 1. Appeal dismissed 2. Appellant to pay the respondent's costs of the appeal to be assessed on the standard basis CATCHWORDS: INSURANCE THIRD-PARTY LIABILITY INSURANCE MOTOR VEHICLES COMPULSORY INSURANCE LEGISLATION UNINSURED VEHICLES QUEENSLAND where an employee of the appellant was injured in an accident involving a mobile crane owned by the appellant where the crane was not registered where the respondent settled the action brought by the employee whether the injury of the employee was one to which the statutory compensation scheme applies whether the respondent was the proper defendant in the action brought by the employee whether the appellant is liable to reimburse the respondent in respect of expenses incurred by it in settling the action Motor Accident Insurance Act 1994 (Qld), s 3, s 4, s 5, s 12, s 13A, s 20, s 23, s 31(1)(c), s 60 Transport Infrastructure (Roads) Regulation 1991 (Qld), s 12

2 2 COUNSEL: SOLICITORS: Evans v Transit Australia Pty Ltd [2002] 2 Qd R 30; [2000] QCA 512, applied Gideona v Nominal Defendant [2006] 1 Qd R 31; [2005] QCA 261, considered Townsville Trade Waste Pty Ltd v Commercial Union Assurance Company of Australia Limited [2000] 2 Qd R 682; [1999] QCA 386, considered P J Dunning SC, with G D Beacham, for the appellant W Sofronoff QC SG, with N H Ferrett, for the respondent Damien Bourke & Associates for the appellant Cooper Grace Ward for the respondent [1] KEANE JA: The appellant, Duntroon Holdings Pty Ltd, carried on a steel fabrication business at Brendale. The business was located upon two pieces of private land separated by a public road. On 14 June 2000, one of the appellant's employees, Mr James, suffered personal injuries when his leg was crushed by the front right-hand wheel of a mobile crane being driven by another of its employees across the road from one of the appellant's plots of land onto the other. The point of impact between the vehicle and Mr James was inside the boundary line of the appellant's property; but the rear wheels of the crane were still on the road as it moved forward. It is common ground that the injury was suffered in consequence of the negligent operation of the mobile crane. [2] Mr James brought an action at common law for damages for personal injuries against the appellant. The mobile crane was not the subject of a policy of compulsory third party ("CTP") insurance under the Motor Accident Insurance Act 1994 (Qld) ("the Act"). Over the appellant's objection, the respondent, the Nominal Defendant, assumed the defence of the action brought by Mr James on the basis that it was the insurer of the appellant's common law liability to its injured employee. The appellant's preference was to seek indemnity for its liability to its injured employee under its policy of insurance relating to workers' compensation. The Nominal Defendant settled the employee's action, and then sought to recover the expenses so incurred from the appellant under s 60 of the Act. [3] The learned trial judge upheld the Nominal Defendant's claim against the appellant, holding the Nominal Defendant was the insurer of the liability of the appellant in respect of the injury to its employee, and was entitled to reimbursement from the appellant in respect of the expense it incurred as a result. The appellant challenges this result. [4] I propose to set out the relevant provisions of the Act and the reasons for the decision of the learned trial judge before proceeding to a discussion of the arguments agitated in this Court. The Act [5] The long title of the Act is "An Act to provide for a compulsory third-party insurance scheme covering liability for personal injury arising out of motor vehicle accidents, and for other purposes". The objects of the Act are stated in s 3. Those objects are, inter alia:

3 3 "(a) (aa) 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 establish a basis for assessing the affordability of insurance under the statutory insurance scheme and to keep the costs of insurance at a level the average motorist can afford". [6] It is apparent from these provisions that in enacting this legislation, the legislature was concerned, both to ensure that those who suffer personal injury as a result of a motor vehicle accident will have access to funds to ensure that their entitlements to compensation under the common law are satisfied, and also to minimise the costs of the scheme to those who contribute to it by the premiums paid under the statutory insurance scheme. [7] By virtue of s 12 of the Act, an insurance premium under the statutory insurance scheme consists of components which include the insurer's premium and the statutory insurance scheme levy (being the costs of administering the scheme) and the Nominal Defendant levy "to cover the estimated costs of the Nominal Defendant scheme ". The Nominal Defendant is established by s 16 of the Act. Under s 13A of the Act, premium rates are fixed by reference to an actuarial analysis of the statutory insurance scheme. The legislation contemplates that premiums payable by the "average motorist" can ordinarily be expected to vary upwards to the extent that the statutory insurance scheme is obliged to meet claims by injured persons as a result of accidents involving motor vehicles which are uninsured. [8] The application of the Act is relevantly explained in s 5 as follows: "(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 (b) (iii) (iv) the motor vehicle running out of control; or a defect in the motor vehicle causing loss of control of the vehicle while it is being driven; and is caused, wholly or partly, by a wrongful act or omission in respect of the motor vehicle by a person other than the injured person. (2) For an uninsured motor vehicle, subsection (1) applies only if the motor vehicle accident out of which the personal injury arises happens on a road or in a public place. (3) However, this Act does not apply to personal injury caused by, through or in connection with (a) (b) (c) a tractor, backhoe, bulldozer, end-loader, forklift, industrial crane or hoist, or other mobile machinery or equipment; or an agricultural implement; or a motor vehicle adapted to run on rail or tram tracks; or

4 4 (d) an amphibious vehicle; or (e) a motor vehicle of a class prescribed by regulation; unless the motor vehicle accident out of which the injury arises happens on a road. " [9] Section 4 of the Act defined the term "motor vehicle accident" at the time of the injury to Mr James to mean "an incident in which personal injury is caused by, through or in connection with a motor vehicle." The policy afforded cover against liability for personal injury caused by, through or in connection with the insured motor vehicle anywhere in Australia so long as the liability was for personal injury to which the Act applies by virtue of s 5 of the Act. Under cl 2 of the policy of insurance contained in the schedule to the Act: "the person insured is the owner, driver or other person whose wrongful act or omission in respect of the insured motor vehicle causes the injury to someone else and any person who is vicariously liable for the wrongful act or omission." [10] The mobile crane in question in this case was not registered under the Transport Infrastructure (Roads) Regulation 1991 (Qld) ("the Regulation"). Section 12 of the Regulation provides: "12 A person must not use, or permit to be used, on a road, a vehicle (being a motor vehicle or trailer) that is not registered under this regulation " [11] Section 4 of the Act defines the terms "motor vehicle" and "uninsured motor vehicle" relevantly as follows: "motor vehicle means a vehicle for which registration is required under the Transport Infrastructure (Roads) Regulation 1991 or " "uninsured motor vehicle means a motor vehicle for which there is no CTP insurance policy in force, other than a motor vehicle owned by a self insurer or a trailer." I pause here to note that the definition of "uninsured motor vehicle", read exegetically, is "a motor vehicle for which registration is required under the Regulation but for which there is no CTP policy in force." Registration of a motor vehicle is required if the vehicle is to be used on a road. [12] Just as the use of an unregistered motor vehicle on a road is an offence, so is the driving of an uninsured motor vehicle on a road. Section 20 of the Act provides that "[a] person must not drive an uninsured vehicle on a road or in a public place." [13] Under s 23 of the Act, a CTP insurance policy is brought into effect automatically for a motor vehicle when the motor vehicle is registered under the Regulation. As has been seen, the CTP insurance policy affords the vehicle's owner and driver (among other persons) indemnity against liability to persons who suffer personal injury caused by, through or in connection with that motor vehicle. [14] In Gideona v Nominal Defendant, 1 it was held that the effect of s 12 of the Regulation, for the purposes of the definition of "motor vehicle" in s 4 of the Act, is to imply that registration of a vehicle is required as and when it is used on a road. 1 [2006] 1 Qd R 31 esp at

5 5 On the view taken in that case, even a momentary use of a vehicle on a road gives rise to a requirement to register the vehicle under the Act. And this is so even if the vehicle is generally used for "off road" purposes. In practical terms, this means that an owner of a motor vehicle is responsible for ensuring that the vehicle is registered and insured if it is ever used upon a road even if it is usually used for off road purposes. I note that neither side disputed that Gideona v Nominal Defendant was correctly decided. [15] Under the scheme established by the Act, the Nominal Defendant is the insurer of the liability of an owner of a motor vehicle which is not insured under the Act when a negligent act or omission in respect of the use of the vehicle causes personal injury to another person. In this regard, s 31(1)(c) of the Act provides: "(1) If personal injury is caused by, through or in connection with a motor vehicle, the insurer for the statutory insurance scheme is to be decided in accordance with the following principles (c) if the motor vehicle is not insured and a self-insurer is not the registered owner the Nominal Defendant is the insurer". [16] It has already been noted that a "motor vehicle" is defined by the Act to refer to a motor vehicle of which registration is required. In other words, the Nominal Defendant is the insurer, inter alia, of the liability of the driver or owner of a vehicle which should have been registered so as to be lawfully used on a road. If the vehicle had been registered, it would also have been insured by a CTP policy issued under the Act. Thus, the Nominal Defendant is the insurer of the liability of the owner of an unregistered and uninsured motor vehicle in "default" of compliance with the Regulation and the Act by the owner of the motor vehicle in question. [17] Under s 60 of the Act, the Nominal Defendant has a right of recourse against the owner or driver (or both) of an uninsured motor vehicle in respect of the costs "reasonably incurred" by it as the insurer of the motor vehicle. The decision at first instance [18] At trial, the appellant contended that the expenses incurred by the Nominal Defendant to settle the claim by the appellant's injured employee were not "reasonably incurred" by it. This was said to be because the personal injury in question was not caused by a motor vehicle liability for the use of which the Nominal Defendant was the insurer by virtue of s 31(1)(c) of the Act. [19] The appellant argued that the Act had no application to Mr James' injury because the motor vehicle accident out of which the injury arose did not happen on a road. Accordingly, so the appellant contended, the application of the Act to the injury to the appellant's employee was excluded by s 5(2) and (3) of the Act. [20] The learned trial judge rejected the appellant's contention, concluding that "the motor vehicle accident in the present case happened on a road", 2 and, therefore, that the Act applied in respect of the injury to Mr James. At the time of that injury, the mobile crane, being used on a road, was required to be, but was not, registered. Being driven on a road, it was also a motor vehicle which should have been, but was 2 Nominal Defendant v Duntroon Holdings Pty Ltd [2007] QSC 338 at [29].

6 6 not, insured. Accordingly, s 31(1)(c) of the Act operated to make the Nominal Defendant liable as the insurer of the mobile crane. The costs incurred by the Nominal Defendant in settling the claim of the appellant's injured employee were, therefore, reasonably incurred by it, and, accordingly, were recoverable from the appellant under s 60 of the Act. [21] The learned trial judge expressed her conclusion in the following terms: "In my view the present accident falls within paragraphs (i) and (ii) of s 5(1)(a). I do not accept that paragraphs (i) (iv) of s 5(1)(a) are mutually exclusive. It is easy to think of circumstances coming within more than one of them; moreover, to suggest that they are mutually exclusive would be contrary to the implied assumption in Evans v Transit Australia Pty Ltd. Paragraphs (i), (iii) and (iv) clearly refer to the motor vehicle as a whole, and I see no warrant for reading down paragraph (ii) such that 'collision with the motor vehicle' means 'collision with part of the motor vehicle'. The Nominal Defendant's liability pursuant to s 5(2) turns on whether the motor vehicle accident happened on a road. To 'happen' is to 'take place or occur' (The Macquarie Dictionary defines 'happen' as (inter alia) 'to come to pass, take place or occur'. The Shorter Oxford defines it to include 'to come to pass to take place; to occur'), and so the question becomes whether the driving of the crane (s 5(1)(a)(i)) or the collision between James and the crane (s 5(1)(a)(ii)) occurred on a road. The location of the 'incident' (as constituted by one or more of the occurrences in s 5(1)(a)) (Evans v Transit Australia Pty Ltd [2002] 2 Qd R 30, 38 39) cannot be divorced from the location of the vehicle as a whole. At the time of impact the crane was partly on the road, and so the incident happened on the road." 3 The arguments on appeal [22] The appellant's submission in this Court, as formulated in its written outline of argument, is that "the question whether the motor vehicle accident happened on a road ought to have been resolved on the basis that the accident in question fell most appropriately, or most particularly, within s 5(1)(a)(ii)" of the Act. On this approach, so it is said, the "relevant question is where the collision, or, more particularly, the act of the crane running against, or coming into violent contact with [the injured employee's] leg, took place or occurred". [23] The appellant argues that, because the precise location of the collision between the mobile crane and the injured employee's leg was on the appellant's land, the accident did not happen on the road. The respondent counters with the argument that, as a matter of ordinary language and common understanding, the accident happened on a road so that the Act applied to the injury suffered by Mr James as a result. [24] The contest, thus framed by the parties, is between the view that the Act had no application at all to the injury suffered by Mr James, and the view that the crane should have been insured under the Act in respect of any liability for personal injury 3 [2007] QSC 338 at [23] [25].

7 7 created while it was being driven on a road. On the facts of this case, it seems likely that if the Act had no application at all to Mr James' injury, his entitlement to damages would not be defeated by the impecuniosity of the appellant: the appellant may have been able to meet Mr James' claim from its own resources or it may have been able to rely on cover afforded for its liabilities at common law by workers' compensation insurance. But whether or not the Act applied to Mr James' injury does not depend on a conclusion as to whether funds or insurance cover other than that afforded by the Act were available to meet Mr James' claim against the respondent. Whether the Act applied depends upon the construction of the Act. [25] In approaching the construction of the Act, McMurdo P said in Townsville Trade Waste Pty Ltd v Commercial Union Assurance Company of Australia Limited: 4 "the Act is remedial or beneficial in its effect, if any ambiguity exists it should be construed beneficially so as to give the fullest relief which the fair meaning of its language will allow, without straining or exceeding the true significance of the provision " [26] I respectfully agree that the Act should be construed, in cases of genuine doubt about its intended operation, in favour of a conclusion that the Act affords coverage in respect of liability for personal injury arising out of a motor vehicle accident and in favour of keeping the costs of the statutory insurance scheme "to a level the average motorist can afford". As it happens, however, I do not consider that resort to this approach is necessary in this case because I consider that there is no reason to doubt the application of the Act to Mr James' injury. [27] The first difficulty with the appellant's submission is that it assumes that s 5(1)(a) is concerned with the location of an accident, and, more particularly, with the question whether or not an accident has happened on a road. There is no foundation for that assumption in the language of the provision. Section 5(1)(a) does not reveal any concern with the location of the various occurrences referred to in s 5(1)(a)(i) (iv). It certainly does not proceed on the assumption that the motor vehicle accident to which it refers happened on a road or in a public place. That is hardly surprising given that no-one would suggest that an accident which happens on private property causing personal injury by a registered (and therefore insured) motor vehicle is not within the scope of the Act. [28] The evident purpose of s 5(1)(a)(i) (iv) of the Act is to define, and so to confine, the classes of personal injury "caused by, through or in connection with a motor vehicle". 5 Only those personal injuries with the kinds of causal connection with a motor vehicle instanced by s 5(1)(a)(i) (iv) are personal injuries to which the Act applies. Thus, in Evans v Transit Australia Pty Ltd, 6 the Court of Appeal explained that the provisions in s 5(1)(a)(i) (iv) afford an exhaustive description of the kinds of occurrence or condition which are relevantly connected to a motor vehicle so as to be within the statutory insurance scheme created by the Act. Pincus JA and Cullinane J said: " the reference to a motor vehicle accident where it appears throughout the Act as no more than the legislator's reference in summary form to the various occurrences for which s 5(1)(a)(i), [2000] 2 Qd R 682 at [7]. Sutton, Insurance Law in Australia, (3 rd ed 1999), at para [2002] 2 Qd R 30.

8 8 s 5(1)(a)(ii) and s 5(1)(a)(iii) provide and in the case of s 5(1)(a)(iv) the condition and occurrence for which it provides. On this approach the reference to a motor vehicle accident and its definition add nothing to the terms of s 5(1)(a) and it is not necessary to import any additional requirement into that subsection that the personal injury for which it provides arises from an incident. Rather the term is a brief compendious reference to the various occurrences provided for in s 5(1)(a) and from which personal injury must result before the Act and thus the statutory policy applies. In our view support is to be found for this construction in s 5(2) which is the first reference to a motor vehicle accident in the substantive provisions of the Act. The absence of any reference to an incident in s 5(1) which is the provision definitive of the ambit of statutory policy taken with the context in which the term appears in s 5(2) is strongly suggestive that the term 'motor vehicle accident' is no more than a reference to the occurrences provided for in s 5(1)(a)(i), s 5(1)(a)(ii), s 5(1)(a)(iii) and s 5(1)(a)(iv). In our view the appellant is correct in its argument that for a personal injury to be one to which the statutory policy applies it is both sufficient and necessary that the injury be: (a) caused by, through or in connection with the relevant motor vehicle; (b) caused as a result of one or more of the occurrences (or in the case of s 5(1)(a)(iv) the condition and occurrence therein provided for) specified in s 5(1)(a); and (c) caused by some wrongful act or omission on the part of someone other than the injured person in respect of the motor vehicle." 7 [29] It is in s 5(2) and s 5(3) that the location of a motor vehicle accident becomes a matter of relevance to the application of the Act. Neither of these subsections contains any specific guidance as to the particular facts which may bear upon the resolution of a dispute as to whether the accident out of which a given injury arose happened on a road. Nevertheless, to the extent that it may be correct to regard s 5(2) and s 5(3) as looking back to s 5(1)(a) for guidance in determining whether an accident has happened on a road, one encounters further obstacles to the appellant's submission. [30] An approach which seeks to establish which of the connections in s 5(1)(a) is the most appropriate to describe how the accident occurred will usually tend to favour, as a matter of impression, the connection with the most immediate temporal relationship to the wrongful act which gives rise to liability. But the immediacy of the connection between a wrongful act or omission and the incurring of a liability has nothing to do with the operation of s 5(1)(a) of the Act. Wrongfulness of an act or omission is the subject matter of s 5(1)(b). Further, the appellant's impressionistic approach will often, though not always, tend to favour the conclusion that the place where the third party is injured, ie the point of the collision, is the place where the motor vehicle accident has happened. There is no reason, in terms of the text of the Act, why the point where injury is inflicted should 7 [2002] 2 Qd R 30 at [18] [26].

9 9 be the place where the accident happened. The concepts of "accident" and "injury" are clearly not co-extensive. Sections 5(2) and (3) expressly distinguish between "the personal injury" and the "accident out of which" the personal injury arises. By virtue of s 5(2), if the motor vehicle accident happens on a road or in a public place, then s 5(1) operates to apply the Act in respect of any personal injury which arises from that accident wherever that injury was suffered. [31] The appellant's impressionistic approach tends, as a practical matter, to skew the application of the conceptual framework provided by s 5 of the Act, in that it promotes a result which, if it had been intended by the legislature, could have been easily achieved simply by excluding altogether from the scope of the Act personal injuries resulting from collisions which do not occur on a road. [32] The respondent's criticism of the appellant's approach goes so far as to argue that, if an uninsured motor vehicle were to be driven so recklessly that it rolled off the road and struck a farmer standing in a roadside paddock, then, on the appellant's argument, the Act would have no application to the injury suffered by the farmer. The Nominal Defendant would not be liable to indemnify the driver of the vehicle, and so the injured farmer would be able to recover damages only from the driver of the vehicle. If the driver was impecunious as drivers of unregistered vehicles tend to be then the injured farmer would be left with a valueless cause of action. The respondent makes the point that such a result could not be consistent with the evident intention of the legislature to provide a comprehensive scheme of compulsory third party liability insurance to ensure meaningful remedies to persons injured by the negligent operation of motor vehicles on our roads and in our public places. The appellant seeks to counter this argument by pointing out that, in the scenario postulated by the respondent, s 5(1)(a)(iii) of the Act would afford the "most appropriate" descriptor of the accident. [33] In my respectful opinion, the real problems with the appellant's insistence upon an inquiry as to the "most appropriate descriptor" are that the need for such a comparison is not supported by the language of the Act, and that to introduce this inquiry is to add a level of uncertainty to the determination of whether or not the Act applies. A construction of the Act which increases the level of uncertainty as to whether or not the Act applies in a given case is, for that very reason, unlikely to accord with the intention of the legislature. [34] To ask whether "the incident in question fell most appropriately, or most particularly, within s 5(1)(a)(ii)" is to approach the issue as to the application of the Act by reference to an impressionistic evaluation about "appropriateness". One must ask "appropriate in relation to what end"? The text of the Act does not articulate the relevant "end": there is simply no instruction or invitation in s 5(1)(a) or elsewhere in the Act to apply such a test. The absence of such an instruction is readily explicable on the basis that the list of connections in s 5(1)(a)(i) to (iv) of the Act is intended to do no more than to provide a statement of the alternative causal connections between the wrongful use or operation of a motor vehicle and the liability for that use or operation, any one of which is sufficient to engage the application of the Act. On this view, there is no occasion to ask whether one of these connections is a more potent cause, or a more accurate description, of the accident or of how it occurred, than any of the others in order to determine whether the Act applies to the injury. If any one or more of these connections is satisfied,

10 10 the Act applies to the injury so long as the other requirements mentioned by Pincus JA and Cullinane J in Evans v Transit Australia Pty Ltd are satisfied. [35] If one were to approach the question whether the accident in this case happened on a road by reference to the causal connections in s 5(1)(a)(i) (iv), and if one were to accept, as I think one must, that any one of these connections would suffice to engage the application of the Act, then it would follow that the Act applied to this injury. At the time of the incident in which Mr James was injured the crane was being driven on a road. The connection in s 5(1)(a)(i) was satisfied. Did the accident in this case happen upon a road? [36] Whether one has regard to the list of connections in s 5(1)(a)(i) (iv) of the Act to determine whether an accident which has resulted in a personal injury happened on a road or whether one addresses that question without regard to s 5(1)(a)(i) (iv), one must recognise that one is addressing the question whether the accident happened on a road in the context, and for the purposes, of the Act. When one considers the question in that light, the conclusion is inescapable that an accident involving a collision between a person and a motor vehicle which happens while a motor vehicle is being driven partly on, and partly off, a road is an accident which has happened on a road. [37] Personal injury caused by the negligent use of motor vehicles is the central concern which the Act seeks to address. In the light of this concern, it is clear that the crucial question must be approached on the basis that a motor vehicle is to be viewed as a unit insofar as it has caused personal injury. One is not concerned with injury caused by any particular part of which a motor vehicle is constructed, nor with whether some of these parts are not on a road when personal injury is caused by the vehicle. As a matter of ordinary parlance, one does not speak of a vehicle which is being driven as being "off the road" while any of its wheels are on the road. The provisions of the Act proceed, even more clearly, on that footing. [38] There can be no doubt that the intent of s 31(1)(c) of the Act is that the Nominal Defendant should be the "default" insurer where there has been a failure by an owner of a vehicle to observe the requirement of s 12 of the Regulation to register the vehicle. As was said in Gideona v Nominal Defendant: 8 "The extent of registration required is established by what is necessary to avoid contravening the statutory prohibition on the use of a vehicle which has not been registered. Whether there has been a contravention of the statutory proscription of the use of an unregistered motor vehicle will necessarily depend upon the circumstances of its use at the particular time at which a contravention is alleged to have occurred." [39] The requirement of s 12 of the Regulation arises when a vehicle is being used on a road. The requirement of s 20 of the Act that a vehicle be insured under the Act arises when a vehicle is being driven on a road. That a vehicle is being driven partly on a road and partly off a road when it is being used does not mean that it is not being used or driven on a road. Nothing in s 12 of the Regulation or s 20(1) of the Act suggests that the legislative provisions should be read as if they were 8 [2006] 1 Qd R 31 at 40 [26],

11 11 observing a dichotomy between use wholly on a road and use partly on a road so that they should be understood as applying only to the former category. [40] The appellant accepted that a vehicle being driven down a boundary line, with its left-hand wheels on private property and its right-hand wheels on a road, was required to be registered under the Regulation and insured under the Act. If an unregistered vehicle is being driven partly on a road and partly off a road, s 12 of the Regulation is thereby infringed, and, because the vehicle is uninsured, s 20(1) of the Act is also infringed. The conclusion that s 20(1) of the Act has been infringed in this scenario confirms that the legislature intended that any liability for personal injury caused in such a scenario should be covered by the scheme of insurance created by the Act. The legislature could not have contemplated that an injury caused by an accident, which occurred in the course of conduct amounting to an offence against s 20 of the Act, might be an injury to which the Act did not apply. In each case, for the purposes of the Act, driving a vehicle partly on a road is regarded as driving a vehicle on a road. [41] I am unable to accept that it is consistent with the intention of the legislature that the Act should not apply to an injury suffered in an accident where, because of negligent driving, the front wheels of a motor vehicle being driven on a road leave the road, mount a private footpath and strike a pedestrian standing on the footpath. The Act applies to personal injury so caused because the accident involved an impact between the injured person and a vehicle which was being driven on a road when the impact occurred. To say that the accident has happened partly off the road, in the sense that the point of impact between the injured person and part of the vehicle was not on the road, is not to say that the accident did not happen on the road so as to deny the application of the Act to the injury. [42] For these reasons, I would resolve this appeal in favour of upholding the decision of the learned primary judge. Conclusion and orders [43] In my respectful opinion, the decision of the learned trial judge was correct; and the appeal should be dismissed. [44] The appellant should pay the respondent's costs of the appeal to be assessed on the standard basis. [45] HOLMES JA: The question confronting the learned judge at first instance was whether the Motor Accident Insurance Act 1994 (Qld) applied to Mr James injury. Because the vehicle in question, an industrial crane, was unregistered, by virtue of s 5(2) the Act did not apply to personal injury caused by, through or in connection with it unless the relevant motor vehicle accident happened on a road or a public place. But there was a more particular limitation: the crane was one of the items of mobile machinery described in s 5(3)(a) of the Motor Accident Insurance Act. Consequently, that Act had no application to personal injury caused by, through or in connection with it, unless the motor vehicle accident out of which the injury arose happened on a road. [46] At the relevant time, motor vehicle accident was defined in s 4 of the Act as meaning an incident in which personal injury is caused by, through or in connection with a motor vehicle. Section 5(1) provided, and provides, a further limitation: the Act does not apply to personal injury caused by, through or in

12 12 connection with a motor vehicle unless it is the result of one of the following occurrences: (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 is caused, wholly or partly, by a wrongful act or omission in respect of the motor vehicle by a person other than the injured person. [47] The learned judge at first instance erred, in my respectful opinion, in emphasising the location of the crane and concluding that because it was partly on the road, the incident happened on the road. The question of whether an incident happened on a road cannot, it seems to me, be answered by establishing whether any part of the vehicle involved in the incident was on a road at the time it occurred. Rather, the focus of enquiry must be on the location of the incident itself. [48] In making that enquiry, I think, with respect, that there is some difficulty in seeking guidance from the intent of the Act as regards registration and insurance of vehicles. Section 5(3) manifests differing intents: the sub-section dictates that the Act is not to apply to personal injury caused by registered vehicles in some circumstances, while in another instance providing coverage against injury caused by a vehicle not requiring registration. To explain: s 5(3) excludes the forms of vehicle and machinery identified in it from the coverage of compulsory third party insurance where personal injury is caused on a private place or a public place other than a road, whether or not the vehicle in question is registered. 9 In that respect, its intent seems to be to restrict, rather than extend, the protection of registration where injury is caused by such vehicles. On the other hand, the limited application of the Act for which s 5(3) provides does extend to an agricultural implement involved in an accident causing injury on a road; notwithstanding that at the time relevant to this injury, an agricultural implement was not a vehicle for the purposes of the Transport Infrastructure (Roads) Regulation 1991 (Qld) and hence did not require registration under Regulation 12. [49] Given those anomalies, one cannot discern in respect of s 5(3) a clear policy in relation to registration or insurance which could aid in the sub-section s construction or application. Instead, in my view, it is simply necessary in any case involving a vehicle which falls under s 5(3) to embark on the factual enquiry prescribed: to establish what was the incident in which personal injury meeting the requirements of s 5(1) was caused, and to determine whether it happened on a road. (A similar exercise is required for s 5(2)). Considerations of the motor vehicle as an entity, and its location in whole or in part, are distractions from that enquiry. [50] In this case, the agreed statement of facts contains the following paragraphs relevant to location: 9 The precursor to s 5(3), s 2(4) of the Motor Vehicles Insurance Act 1936, was inserted by the Motor Vehicles Insurance Act Amendment Act In his Second Reading Speech for the Amendment Bill, the Minister described the amendment as being designed to provide for an on-road liability in respect of mobile machinery and to ensure CTP liability is restricted just to that and is not extended to matters which are rightly workers compensation and public liability claims.

13 13 7. The main property has a concrete driveway ( the driveway ) which provides access to the property from Duntroon Street. 8. The driveway extends from the bitumen road surface, across the footpath and onto the main property. 12. As the crane proceeded up the driveway from the bitumen, the load swung to the left and, as James tried to steady the load, the front right-hand wheel ran over and crushed the leg of James. 13. At the time of impact: (a) the point of impact between the front right-hand wheel of the crane and James leg was located inside the boundary line of the main property; and (b) the rear wheels of the crane were located on the driveway outside the boundary line of the main property, immediately adjacent to the point at which the concrete driveway meets the bitumen. [51] In some cases, the incident out of which injury arises will not occur at the point of impact; in some, there may be scope for argument about how a collection of events constituting an incident (some occurring on, some off, the road) ought to be characterised; but on the facts of the present case, no such complexity arises. The relevant incident was the running over of Mr James leg by the crane s front right-hand wheel. That incident occurred on the appellant s property, not on the road, a fact unaltered by the positioning of the crane s rear wheels. [52] I would allow the appeal, set aside the order made at first instance and give judgment for the defendant with costs. [53] PHILIPPIDES J: I have had the advantage of reading the reasons for judgment of Keane JA and Holmes JA. I agree with Keane JA that the appeal should be dismissed and with his Honour's proposed order as to costs. [54] The learned primary judge correctly determined that the Motor Accident Insurance Act 1994 did apply to the injuries sustained by the appellant s employee. The employee, Mr James, was injured when his leg was crushed by the front wheel of the appellant s unregistered industrial crane which was being driven off the road by another employee. At the time of the accident, Mr James was standing within the appellant s property and, although the front of the crane had moved off the road, the rear of the vehicle had not. The question the learned primary judge was required to determine was whether the motor vehicle accident out of which the personal injury arose happened on a road. The appellant contended that the question should be answered in the negative, with the result that the Act had no application, because of the limitation in s 5(2) of the Act in respect of an uninsured vehicle, and the exclusion attaching to industrial and agricultural vehicles in s 5(3).

14 14 [55] Section 5 provides as follows: 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 (b) (iii) (iv) the motor vehicle running out of control; or a defect in the motor vehicle causing loss of control of the vehicle while it is being driven; and is caused, wholly or partly, by a wrongful act or omission in respect of the motor vehicle by a person other than the injured person. (2) For an uninsured motor vehicle, subsection (1) applies only if the motor vehicle accident out of which the personal injury arises happens on a road or in a public place. (3) However, this Act does not apply to personal injury caused by, through or in connection with (a) a backhoe, bulldozer, end-loader, forklift, industrial crane or hoist, or other mobile machinery or equipment; or (b) an agricultural implement; or (c) a motor vehicle adapted to run on rail or tram tracks; or (d) an amphibious vehicle; or (e) a motor vehicle of a class prescribed by regulation; unless the motor vehicle accident out of which the injury arises happens on a road. [56] The term motor vehicle accident was at the relevant time defined by s 4 of the Act to mean: an incident in which personal injury is caused by, through or in connection with a motor vehicle. Incident is not itself a defined term. [57] Counsel for the appellant conceded that the injury was caused in connection with a motor vehicle which was on a road at the relevant time, but maintained that the accident itself did not occur on a road. It was submitted that the question as to where a motor accident happens was to be answered by reference to where the particular circumstance in s 5(1)(a) has taken place. Further, it was argued that where the incident fitted within more than one category in s 5(1)(a), the question as to whether the motor vehicle accident happened on a road ought to be determined by selecting the location of the most specific or appropriate category in s 5(1)(a). In this case the relevant question was said to be where the collision, or more particularly the act of the crane running against, or coming into violent contact with, Mr James leg, took place, or occurred. That question it was submitted ought to be resolved in this case on the basis that the incident in question fell most appropriately or most particularly within s 5(1)(a)(ii). [58] The applicant s submissions are flawed in a number of respects. Firstly, s 5(1)(a), as Keane JA has pointed out, is not concerned with the matter of identifying the location of the motor vehicle accident. Rather, it is concerned to categorise in an

15 15 exhaustive manner the types of personal injuries that can be characterised as being caused by, through or in connection with a motor vehicle. The appellant s approach that an inquiry is to be made as to which category in s 5(1)(a) a case most appropriately falls is not supported by the terminology or scheme of s 5. The term motor vehicle accident is not defined by reference to the s 5(1)(a) categories, nor are those categories referred to in ss 5(2) or (3) of the Act. In neither s 5(2) nor s 5(3) is inquiry directed to an analysis as to which description in s 5(1)(a) best characterises a given motor vehicle accident for the purposes of ascertaining the location of an accident. Rather, inquiry is directed to whether the motor vehicle accident as opposed to the personal injury, to which it gives rise, has happened on a road. [59] Moreover, the purpose of s 5(1)(a) is to specify what is required as both a necessary and sufficient nexus between the injury and the motor vehicle. It therefore follows that it is also sufficient for the application of the Act that, on any one of the s 5(1)(a) categories, the incident giving rise to injury happened on a road. Thus, even if the s 5(1)(a) categories are to be seen as informing the construction to be given to the term incident for the purposes of the definition of motor vehicle accident, such an approach does not require a choice be made between categories. But in any event, in the circumstances of the present case, to describe what occurred as a collision is an awkward and strained use of language. 10 The incident giving rise to the injury may properly be characterised as the driving of the crane and as such within s 5(1)(a). The injury was caused in connection with the crane and resulted from it being driven on a road. It is no less so characterised because the crane was in the process of being driven off the road and therefore partly on the road and partly off the road. [60] A further difficulty with the appellant s submissions is that they disregard the distinction that is made by the express terms of ss 5(2) and (3) between the injury and the motor vehicle accident out of which the injury arises. The appellant s submissions require a narrow construction of the term motor vehicle accident ; that is, one which looks to the most proximate temporal nexus and its location. On one view, the injury in the present case arose when the wheel of the crane was driven over Mr James foot. But so categorising the relevant incident fails to give any weight to the distinction made in ss 5(2) and (3) between the injury and the accident out of which it arises, as can be seen by the following example. Suppose in the process of moving off the road, in addition to the injury to Mr James occurring, the rear wheel of the crane had struck a person standing on the road. On the appellant s reasoning, differing conclusions would follow in respect of each injury as to whether the accident happened on the road, even though the mechanism by which the accident occurred, the driving of a vehicle straddling the road, remained the same in each case. In essence, such an approach marries the location of the incident giving rise to the injury, with the location of the impact resulting in injury. The two may, but need not necessarily, converge. 10 See Townsville Trade Waste Pty Ltd v Commercial Union Assurance Company of Australia Ltd [2000] 2 Qd R 682 at [23] per Davies JA, [35] per White J.