ODG archive

ODG front page








Search ODG site



Date: Thu, 24 Nov 2005 09:25:10 +1100

From: Neil Foster

Subject: More on maternal torts in Alberta; use of motor vehicle


Dear Colleagues;

I was interested to read in the Vytlingam case that David referred to, that the Ontario court referred to the High Court of Australia decision in Dickinson v Motor Vehicle Insurance Trust (1987) 163 CLR 500, where the Court held that where two children had been playing with matches while sitting in a car waiting for their father to finish shopping, and had been injured when the car caught fire, that this accident fell within the motor vehicle scheme. The connection required by the legislation at the time was that the injury had to be "caused by or arising out of the use of" a vehicle, and the court held that "arising out of the use of" was so broad that it included this. I thought it might be worth providing a brief update on subsequent HCA decisions on similar issues.

Of course the question is always one of the particular statute. After Dickinson the Western Australian government introduced new wording into the Act, so that now to be covered by the motor accident scheme the injury had to be "directly caused by, or by the driving of, [a] motor vehicle". In Insurance Commission of Western Australia v Container Handlers Pty Ltd [2004] HCA 24 the High Court interpreted this new version of the legislation to exclude someone from being covered under the motor accidents scheme where they were injured while repairing a truck on the side of the road. The truck needed repair because it had just been driven, but under the new narrow approach the injury was not "directly" caused by the driving.

A similar narrow approach (again constrained by the legislation) was adopted in the most recent HC decision on this sort of provision in Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26 (19 May 2005). In the Allianz case, a worker was injured when unloading a heavy container from the back of a truck. The circumstances included the fact that there was a device installed in the truck to make the job easier, which if it had been used would have avoided the injury. But it had broken down, and hence the job had to be carried out manually. It was (marginally) better for the worker to sue under the regime governed by the motor accidents legislation than that governed by the workers' compensation legislation. The Court of Appeal in NSW held that the motor accidents scheme was engaged, because the accident had in a sense been the "result" of the fact that the truck was defective, because the unloading mechanism was not working. The High Court, after a careful analysis of the legislative wording, disagreed. They held that a much closer causal connection was required by the wording [s 3 of the Motor Accidents Compensation Act 1999 (NSW) "if, and only if, the injury is a result of and is caused during: (iv) such use or operation by a defect in the vehicle"], and that the "defect" in the vehicle, rather than being a cause of the injury, was simply the factual background - the "real" cause was the decision of the employer to require the worker to use a faulty system of work. All the members of the Court agreed (!) that a tight test of causation, characterized by notions of "predominance" and "immediacy", governed the Act (see paras [102]-[103]) and hence that the injury in this case was not "caused" in the relevant sense by the defect in the truck.


Neil Foster

Neil Foster
Lecturer & LLB Program Convenor
School of Law
Faculty of Business & Law
University of Newcastle
Callaghan NSW 2308
ph 02 4921 7430
fax 02 4921 6931

>>> David Cheifetz 24/11/05 3:10 >>>

At least in Ontario and BC, we've probably reached the stage where being a passenger in a vehicle which is being driven from point A to point B - one of the purposes for which vehicles exist - may well be sufficient use in most cases to satisfy that prerequisite to the application of standard Canadian automobile insurance policies.

As to how far will some members of the Canadian judiciary will extend the meaning of "use", see two cases where use was found.

Herbison v. Lumbermens Mutual Casualty Company

Vytlingam v. Farmer




<<<< Previous Message  ~  Index  ~  Next Message >>>>>


Webspace provided by UCC
  Comments and suggestions are welcome - contact s.hedley@ucc.ie