Australia: Driving A Motor Vehicle Not Enough For Motor Accident Legislation

The appellant (in the WA Court of Appeal proceedings), John Frederick Maitland-Smith (appellant), appealed the decision of the District Court of Western Australia, which dismissed his claims for damages for personal injuries he sustained whilst driving a bus in the course of his employment with Path Transit Pty Ltd (Path) - the First Respondent in the Court of Appeal proceedings. The appellant conceded in the District Court proceedings that his claim for damages would be precluded from the Workers Compensation and Injury Management Act 1981 (WA), unless it was a claim to which the Motor Vehicle (Third Party Insurance) Act 1943 (WA) (Motor Vehicle Act) applied. The District Court held that it did not. Path also filed a cross-appeal with respect to the finding of negligence made against it by the trial judge, notwithstanding no damages were awarded to the appellant.

By way of background, the appellant alleged that he suffered personal injury as a result of the spontaneous collapse of the driver's seat upon which he was sitting on three separate occasions during the course of his employment. The trial judge, however, was unable to identify the cause of the chair's collapse. There was no evidence that the problem had occurred prior to the first of the three incidents in which the appellant was involved. Since Path had a system in place for servicing its chairs and the appellant did not establish that the system that was in place was inadequate, the appellant did not prove that Path was in breach of its duty of care to him in respect of the first incident.

Following the first incident, according to the trial judge, Path had every opportunity to inspect other seats that seemed defective and to rectify same to make them suitable for their purpose. This would have come at minimal expense. The fact that no effort was made by Path to inspect other buses during the servicing period, despite the incident described, was in the trial judge's opinion a breach of duty by Path. However, the claim was dismissed as it was also found that the Motor Vehicle Act did not apply to the subject claim, the basis of which is discussed below. Path appealed against the finding of negligence.

The Court of Appeal allowed Path's Cross Appeal and dismissed the appellant's contention in relation to same. The reason for this was that the Court of Appeal found the trial judge's logic to be merely speculative and unsupported by the evidence. Specifically, the trial judge found that after the first incident in which the appellant was involved, Path should have inspected not only the subject seat involved, but all seats in all buses under Path's control. However, no evidence that any defect in the seat on the first bus was identified and further, there was no evidence or finding that justified such an inspection. It was further considered that there was also no evidence to indicate that such an inspection, if undertaken, would have prevented the incident in any event. Accordingly, the findings of negligence against Path were unfounded and the appeal was allowed.

With respect to the finding of whether the Motor Vehicle Act applied, the Court of Appeal referred to the High Court decision in Insurance Commission of Western Australia v Container Handlers Pty Limited [2004]. In this case, the Court construed the statutory scheme in such a way that the injury sustained must have been caused directly by the driving of the vehicle. In the present case, the trial judge concluded that because he was unable to identify the cause of the seat collapse, it followed that he was unable to conclude that it was caused by the motion of the bus. This approach, in the opinion of the Court of Appeal, was consistent with the law espoused and reinforced by Handler. In particular, that case noted the defect in the motor vehicle must be caused by "some aspect of the management and direction of the vehicle" and not merely caused by the motion of the vehicle. A finding consistent with the latter would be insufficient to establish an indemnity in line with Handler, as the fact that the bus was merely in motion at the time of the seat collapse only established a temporal connection between the motion of the bus and the collapse of the seat, not a causal connection. The lack of evidence of the causal connection led to mere speculation.

That the appellant did not adduce any technical or expert evidence relating to the seat collapses or to contradict the evidence of Path's witnesses concerning the properties of the driver's chair and the fact that it was unable to collapse, meant that the trial judge's acceptance of the appellant's evidence was in error and any finding of negligence, given the lack of technical evidence adduced by the appellant to contradict the evidence of Path was merely speculative and unreasonable. However, given the corroborative documentary evidence and the appellant's contemporaneous complaints, coupled with the trial judge's acceptance of the appellant's evidence, it was open to the trial judge to find that the seat collapsed as alleged by the appellant. Accordingly, Path's cross appeal on this ground failed.

The trial judge's findings that the cause of the failure of the seat was identified after inspection and that action was taken to prevent the collapse in future were set aside. There was no documentary evidence suggesting any such inspection or recording of any defects occurred. A number of other findings made by the trial judge were not open for consideration on appeal as they were consequential on the findings of inspection which were set aside.

The Court of Appeal held that Path's failure to inspect and investigate the causes of the subject incidents to a large degree demonstrated breach of duty to the appellant. However, such breaches were neither pleaded, nor litigated at trial and the appellant did not seek to uphold the findings made by the trial judge concerning Path's negligence. Accordingly, since the findings of inspection and rectification of the alleged defects were essential to the finding of breach of duty, the finding of breach ought also to be set aside and the appellant's action against Path failed.

Interesting comments were proffered by the Court of Appeal concerning the legitimacy of the current framework and the narrow scope of the current motor vehicle legislation. The fact that the driving of the vehicle must be the direct cause of the injury does not seem to account for defects beyond the driver's control, such as defective brakes or pot holes in the road surface. In summary, even though the seat in the subject case collapsed whilst the bus was in motion, it could not be established that the actual collapse was caused by the driving of the bus.

Maitland-Smith v Path Transit Pty Ltd (2009) 52 MVR 185; [2009] WASCA 46 (4 March 2009)

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