Toll Pty Ltd v Harradine [2016] NSWCA 374

The authorities establish that if the forklift in the present case was being used to unload the contents of the stillage onto the trailer, and the forklift was stationary during this process, Mr Bournes was not “driving” it within the meaning of s 3A(1) of the MAC Act.

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a slight movement of the forklift forwards or backwards while the unloading process was continuing would not change the “exclusive non-driving character” of the process

Reasoning: “during…the driving of the vehicle”

 

42. Section 3A(1) of the MAC Act and its predecessors have given rise to difficult questions of construction. In part, the difficulties are a consequence of what the plurality in Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [5] (Allianz) described as a “grammatical contortion” in language now found in the last part of the chapeau to s 3A(1). [6]

43. In the present case, Toll did not dispute that the Worker’s injuries “were caused by the fault of the…driver of a motor vehicle in the use or operation of the vehicle”, within the meaning of s 3A(1) of the MAC Act. However, it was common ground on the appeal that an injury is not within s 3A(1) of the MAC Act unless the injury was sustained during one of the events specified in the sub-section. This so-called “temporal criterion” follows from the interpretation given by this Court in Zotti v Australian Motor Insurers Ltd [7] (Zotti) to the “carefully considered dicta” of the plurality of the High Court in Allianz. [8] Thus, in a case in which the injured person relies on s 3A(1)(a) of the MAC Act, the injuries must have been sustained within the period during which the driving of the vehicle was taking place. [9] It is not enough for the injured person to establish that his or her injuries were caused by the fault of the owner or driver in the use or operation of the vehicle. [10]

44. It is convenient to deal first with Toll’s challenge to the primary Judge’s (implicit) finding that the Worker’s injuries were sustained during the “driving” of the forklift. That challenge requires reference to the authorities distinguishing between the locomotion functions of a dual purpose vehicle such as a forklift and its non-locomotion functions.

Construction of the “temporal criterion”

45. A vehicle such as a forklift may be used as a means of locomotion and transportation or as a device for loading and unloading. The use or operation of a forklift exclusively as a loading or unloading device does not normally involve the “driving” of the forklift, even though it is capable of being driven when performing locomotion or transportation functions. [11] The general principle is that a forklift is being driven when it is subject to actual control and management while it is in locomotion. [12]

46. In ANI, an employee was injured when he fell from the back of a stationary semi-trailer while assisting a forklift driver who was loading stillages onto the semi-trailer. The South Australian legislation contained a provision similar to s 3A(1) of the MAC Act. The Supreme Court of South Australia held that once the forklift stopped alongside the trailer it was no longer being driven, but was being used as a loading device.

47. Cox J explained that the distinction between the two functions of a forklift–locomotion and loading– does not simply depend on whether the forklift’s wheels are turning at a particular time: [13]

“No-one suggested that [the forklift operator] was not ‘driving’ the forklift…before he stopped it alongside the semi-trailer. However, once he was there and had started to raise the tines in order to place the stillages onto the tray, he was no longer driving the forklift, in my opinion, but was simply using the vehicle as a loading device. His use of it did not cease to have an exclusive non-driving character simply because (if it was the case) there were interspersed between the raising and lowering of the tines, in the dominant activity of loading and at the same place, small shuffling movements of the forklift, backwards and forwards, as the driver deposited the stillages in their different positions on the tray. The top stillage fell only because of the way the forklift was operated in the course of loading the semi-trailer. In my opinion, the learned judge should have found on the evidence that the plaintiff’s injuries were not a consequence of the driving of the forklift.”

48. In Whitehead, the tines of a front end loader were being manipulated in order to connect a chute to a chipper. The Worker was injured when he mounted the chipper and attempted to align the chute to the sleeves attached to the loader. Tobias JA held that although the injuries were sustained “in the use or operation” of the loader, “it was not being driven in any relevant sense if it was otherwise stationary”.

49. Barrett JA added the following comment in his concurring judgment: [14]

“The ‘driving’ of a motor vehicle does not end or become suspended when the vehicle stops at a traffic light or pauses at a toll gate: QBE Insurance (Australia) Ltd v Smith (2005) 43 MVR 407; [2005] NSWCA 130 at [36] per Hodgson JA. In those circumstances, the driver maintains control of the vehicle for the purpose of proceeding when the temporary interruption ends. The characterisation is different when, as in…Suncorp Metway Insurance Ltd v Sichter [2011] 2 Qd R 89; (2010) 55 MVR 524; [2010] QSC 164 and the present case, the stopping is so that some aspect of the vehicle’s structure unrelated to its locomotive and transporting functions may be deployed by the driver.”

50. There is not necessarily a “bright line” separating the locomotion and loading functions of a vehicle such as a forklift. At some point, the operator of a forklift which is being used to load or unload goods, may terminate that activity and begin to use the forklift for the purpose of locomotion. Each case will of course depend on its own circumstances, but the observations of Heydon J in Container Handlers as to the “core meaning” of the “driving” of a vehicle are helpful. His Honour said: [15]

“‘The driving’ of a vehicle, in at least its core meaning in this context, is the activity conducted by a human being in the driver’s seat who manages and directs the course of its movement by operating the controls – preparing to start, starting, accelerating, braking, steering, giving appropriate signals, operating the horn and lights appropriately, stopping and turning the engine off.”

51. In Whitehead, Tobias AJA interpreted Heydon J’s remarks to mean that: [16]

1“a vehicle may be said to be driven from the moment its engine is started to the moment when the engine is turned off.”

Tobias AJA added that whether the two concepts coincide wholly or purely depends on their characteristics.

What does “driving” require in this case?

52. The authorities establish that if the forklift in the present case was being used to unload the contents of the stillage onto the trailer, and the forklift was stationary during this process, Mr Bournes was not “driving” it within the meaning of s 3A(1) of the MAC Act. In addition, it follows from the analysis of Cox J in ANI and the approval of his Honour’s reasoning in Whitehead, that a slight movement of the forklift forwards or backwards while the unloading process was continuing would not change the “exclusive non-driving character” of the process. Thus, I do not accept Mr Gross’ submission that a slight movement of the forklift backwards or forwards during the unloading and loading operation is sufficient of itself to justify a finding that the forklift was being driven at the time.

53. If, however, the unloading operation had been completed and Mr Bournes reversed the forklift slightly in preparation for moving it away from the trailer, in my opinion, he would be “driving” the vehicle. At this point he would have started to use the forklift for the purpose of locomotion. This would be true even if the backward movement was simply to allow the tines to be lowered so that the operator would have a clear vision of the path to be taken. In essence, the backward movement of the forklift would mark the end of the loading function and, more importantly, the start of the locomotion function.

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95. The difficulty confronting the Worker in the present case is that the evidence affirmatively suggests that the predominant and proximate cause of the Worker’s injuries was his action in placing his weight on the base of the stillage in the course of unloading the last of the bags. At that point, the stillage was attached merely by its own weight to the tines of the forklift. Since the Worker had almost completed the unloading process, presumably the weight distribution of the stillage’s load had been altered.

96. It may be that there can be more than one proximate cause for the purposes of s 3A(1) of the MAC Act. [39] However, there was nothing in the Worker’s evidence to indicate that the slight backwards movement of the forklift, which (on the assumptions I have made) marked the commencement of its locomotion function contributed in any material way to the displacement of the stillage from the tines.