LEWIS v ECRODRESS PTY LTD and ANOR [1996] NSWCA 324

LEWIS v ECRODRESS PTY LTD and ANOR SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

HANDLEY, COLE and BEAZLEY JJA 3 May 1996

[1996] NSWCA 324

Beazley JA On 31 January 1986 the appellant was injured when control was lost of a heavy duty water hose under pressure which whipped out and around the appellant's body. The hose was part of a stormwater drain clearing apparatus set up on the back of a tray top truck owned by and registered in the name of the first respondent.

The principal question raised by the appeal is whether, in the circumstances, the plaintiff's injuries were caused by or arose out of the use of a motor vehicle within the meaning of s14 of the Motor Vehicles (Third Party Insurance) Act 1942 (NSW).

The truck was a tray top truck. There was mounted on the tray a water tank, to which was connected a heavy duty hose. The hose was wound round a wheel known as a retriever. The water tank was operated by a motor separate from the motor of the truck. There was no evidence that the apparatus was affixed to the tray of the truck.

In dealing with questions of this kind the words of Barwick CJ in Government Insurance Office of New South Wales v R J Green and Lloyd Pty Ltd (1966) 114 CLR 437 should be borne in mind. The Chief Justice said, at 444, "...it [is] better to endeavour to apply the statutory expression as it is to circumstances as they arise, bearing in mind, as my brother Menzies has pointed out in Fawcett v BHP By-Products Pty Ltd (1960) 104 CLR 80 at 87, that in this field one should not be seeking subtleties but rather applying broad and practical conceptions."

The question, therefore, in the case is whether the appellant's injury arose out of the use of the motor vehicle. In my opinion it did not.

The injury was not in any way connected to the use of the truck. It was caused by the hose going out of control under pressure. That pressure came from an engine which was separate from and unconnected to the truck.