Reported Decision : 57 NSWLR 636 New South Wales Court of Appeal CITATION : Emad Trolley Pty Ltd v Shigar [2003] NSWCA 231 HEARING DATE(S) : 12 May 2003 JUDGMENT DATE : 21 August 2003 JUDGMENT OF : Meagher JA at 1; Hodgson JA at 2; McColl JA at 8 DECISION : (1) Leave to appeal granted (2) Apellant to file in the registry of the Court within 48 hours a Notice of Appeal in the form of the draft handed to the Court (3) Appeal allowed (4) The judgment of Certoma ADCJ of 12 July 2002 be set aside (5) The respondent's Statement of Claim be dismissed (6) The respondent pay the appellant's costs of the District Court proceedings (7) The respondent pay the appellant's costs of the appeal and the application for leave to appeal. CATCHWORDS : PRACTICE & PROCEDURE - pleadings - respondent injured in the course of employment by the appellant when he fell from a motor vehicle - whether in the circumstances of the accident the proceedings were caught by the Motor Accidents Compensation Act 1999 ("the Act") with the effect that the respondent was precluded from commencing proceedings because he had not complied with ss 70 and 108 of that Act - whether the fact that the respondent's pleading was framed as a breach of duty of care by his employer meant it avoided the operation of the Act - STATUTORY INTERPRETATION - whether the respondent's proceedings constituted a "claim" with respect to a "motor accident" within the meaning of the Act. - D Motor Accidents Act 1988 (NSW) LEGISLATION CITED : Motor Accidents Compensation Act 1999 (NSW) Road Transport (General) Act 1999 NSW Workers Compensation Act 1987 (NSW) Akhrass v Allianz Australia Insurance Ltd [2002] NSWSC 772 Allianz Australia Insurance Limited v GSF Australia Pty Ltd [2003] NSWCA 174 AMP General Insurance v Brett (1999) 27 MVR 492 Balfour Beattie Power Constructions (Australia) Pty Ltd v GIO of NSW (1996) 24 MVR 162 Baker v Rothmans of Pall Mall (Australia) Ltd (1999) 18 NSWCCR 374 Collins v Blantern (1767) 2 Wils 347; (1767) 95 ER 850 Dickinson v The Motor Vehicle Insurance Trust (1987) 163 CLR 500 Hill v Bolt (1992) 28 NSWLR 329 CASES CITED : Itek Graphix Pty Ltd v Elliott (2002) 54 NSWLR 207 Leo N Dunn & Sons Pty Limited v McPhillamy [2000] NSWCA 343 NRMA Insurance Ltd v NSW Grain Corporation (1995) 22 MVR 317 Pender v Power Coal Pty Limited [2002] NSWSC 925 Peter Warren (Fairfield) Pty Limited v McMartin (1996) 24 MVR 235 Prospect County Council v Foster (2001) 33 MVR 228 Salido v Nominal Defendant (1993) 32 NSWLR 524 Secretary, Department of Treasury and Finance v Kelly (2001) 4 VR 595 Woods v Bate (1986) 7 NSWLR 560 Zurich Australian Insurance Limited v CSR Limited (2001) 52 NSWLR 193 PARTIES : Emad Trolley Pty Limited (Appellant) Tarik Shigar (Respondent) FILE NUMBER(S) : CA 40627/02 COUNSEL : R C Tonner (Appellant) S P Bliim (Respondent) SOLICITORS : Moray & Agnew (Appellant) Gerard Malouf & Partners (Respondent) LOWER COURT District Court JURISDICTION : LOWER COURT DC 12659/01 FILE NUMBER(S) : LOWER COURT Certoma ADCJ JUDICIAL OFFICER : IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40627/02 DC 12659/01 MEAGHER JA HODGSON JA McCOLL JA Thursday, 21 August 2003 EMAD TROLLEY PTY LTD v SHIGAR The Motor Accidents Compensation Act 1999 (the "Act"), s 108(1), provides "that a claimant is not entitled to commence court proceedings against another person in respect of a claim" unless certain certificates have been issued by claims assessors. On the 8th September 2000, the respondent slipped off a trolley truck in the course of employment with the appellant as a trolley collector at Westfield Shopping Centre Liverpool. The trolley truck was a "motor vehicle" within the meaning of that term in the Act. In November 2001, the respondent commenced proceedings against the appellant. His claim was pleaded in a manner intended to assert that the appellant had breached its duty as the respondent's employer. It was deliberately pleaded in that manner to seek to avoid the operation of the Act. The appellant by notice of motion sought orders in the District Court of NSW that the Statement of Claim be dismissed on the ground that the respondent had failed to comply with ss 70 & 108 of the Act as his proceedings constituted a "claim" within the meaning of the Act. The motion was dismissed. The appellant sought leave to appeal from the dismissal of its motion. HELD per McColl JA (Hodgson JA and Meagher JA agreeing) granting leave and allowing the appeal: 1. The circumstances of the respondent's accident constituted a "claim" and a "motor accident" within the meaning of those expressions in the Motor Accidents Compensation Act 1999. 2. The scheme created by the Motor Accidents Compensation Act 1999 is intended to ensure that any claim in respect of an injury or death which arises from a motor accident is to be resolved expeditiously and through the assessment process rather than court proceedings. 3. The prohibition in s 108 of the Motor Accidents Compensation Act 1999 is mandatory and prevents the commencement of court proceedings in respect of a "claim" where the provisions of the Act have not been complied with. 4. Where the circumstances of an accident constitute a "claim" within the meaning of the Motor Accidents Compensation Act 1999 a person may not avoid the operation of the legislative scheme by framing the cause of action as a breach of the employer's duty of care. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40627/02 DC 12659/01 MEAGHER JA HODGSON JA McCOLL JA Thursday, 21 August 2003 EMAD TROLLEY PTY LTD v SHIGAR Judgment 1 MEAGHER JA: I agree with Hodgson JA. 2 HODGSON JA: I agree with McColl JA. 3 In my opinion the injury alleged by the respondent in these proceedings was an "injury" as defined in the Motor Accidents Compensation Act 1999 (MAC Act), in that it was allegedly caused by the fault (negligence) of the appellant who was the owner of the relevant motor vehicle, and it was allegedly a result of and caused during the driving of that vehicle. It does not matter that the driving itself was not alleged to be negligent, or otherwise to involve fault. 4 Accordingly, the claim made by the respondent was a "claim" as defined in the MAC Act; and the respondent was a "claimant" as defined in that Act. And the accident or incident alleged as being the occasion of the injury was a "motor accident" as defined by the Act. 5 In those circumstances, ss.70 and 108 of the MAC Act applied, so that the respondent's Statement of Claim must be dismissed. 6 If the respondent's claim had been in respect of an injury caused progressively over a period of time, even if caused by the fault of the owner of a motor vehicle, and even if a result of and caused by the driving of that vehicle, the result would have been different. Chapter 4 of the MAC Act is plainly directed at regulating claims arising out of motor accidents, and has no application where an alleged injury is caused, not by a motor accident, but progressively over a period of time: see s.67. Accordingly, ss.70 and 108 have no application where there is no motor accident, even though there may be an injury and a claim as defined by the MAC Act. 7 In my opinion a similar argument was the basis of the decision in Leo N. Dunn & Sons Pty. Ltd. v. McPhillamy [2000] NSWCA 343; although the relevant provisions of the Motor Accidents Act 1988, with which that case was concerned, were not quite so clearly tied to the occurrence of a motor accident as are the relevant provisions of the MAC Act. 8 McCOLL JA: Background 9 The claimant sought leave to appeal against the decision of Certoma ADCJ in which his Honour dismissed the claimant's motion that the proceedings be struck out because the opponent had failed to comply with requirements of the Motor Accidents Compensation Act 1999 (the "MAC Act 1999"). The application for leave to appeal and the appeal were heard concurrently. As I am of the view that the appellant should be given leave to appeal, I shall refer to the respective parties as appellant and respondent throughout this judgment. 10 This case concerns the question whether the respondent who was injured in the course of his employment when he fell from the appellant's motor vehicle may, by pleading his cause of action against the appellant (his employer) as an unsafe system of work, avoid the operation of the MAC Act 1999. 11 On 22 November 2001, the respondent commenced proceedings against the defendant in the District Court of New South Wales seeking to recover damages in respect of injuries he said he had suffered as a result of the defendant's negligence. He alleged that he had been injured on 8 September 2000 when he slipped off a trolley truck whilst employed by the appellant as a trolley collector. 12 The appellant defended the proceedings by, among other matters, asserting that if the respondent was injured as he alleged, his injuries constituted a "motor accident" within the meaning of the MAC Act 1999 and, that as he was in breach of ss 70 and 108 of that Act, the proceedings were not sustainable. It was common ground that the respondent had not complied with either of those provisions. The respondent submitted he was not obliged to do so because his pleadings, as framed, did not plead a "motor accident" within the meaning of the MAC Act 1999. 13 Sections 70 and 108, which I will set out when considering the terms of the MAC Act 1999, operate to deter (in the case of s 70) or prevent (in the case of s 108) proceedings being commenced in respect of a "motor accident" as defined in the MAC Act 1999, unless certain procedures have been followed. 14 In addition to relying upon the MAC Act 1999 in its defence, the appellant filed a Notice of Motion seeking the dismissal of the Statement of Claim on the grounds that it had been filed in contravention of ss 70 and 108. 15 The claimant's motion was heard by his Honour Acting District Court Judge Certoma on 12 July 2002 and dismissed with costs. 16 The question to be determined therefore is whether, in the circumstances, the respondent was caught by the MAC Act 1999 and thus precluded from bringing proceedings by virtue of his non-compliance with ss 70 and 108. For the reasons set out below I am of the view that that question should be answered affirmatively. The facts 17 The respondent described the circumstances in which he was injured in his Employee's Compensation claim form as follows: "During the work time I was collecting the trollies (as spelt in form) from the car park and carried on the trailer and after riding the trailer on the back the driver was driving I fell down." 18 The Statement of Claim described the incident more sparely in the following terms: "On or about 8th September 2000 the Plaintiff sustained personal injury, loss and damage … when he slipped off the trolley truck." 19 Paragraph 4 pleaded: "4 The Plaintiff's injuries were caused by the Defendant's negligence Particulars of Negligence: a. Failed to provide a safe system of work; b. Failed to comply with the Occupational Health & Safety Act and Occupational Health & Safety Act and Regulations. c. Failed to take any or any adequate precautions for the safety of the Plaintiff. d. Exposed the Plaintiff to a risk of injury which could have otherwise been avoided by reasonable care on its part. e. Failed to keep any or any proper lookout for the safety of the Plaintiff. f. Failed to observe the Plaintiff was in a position of peril. g. Failed to supervise the Plaintiff in a professional manner." 20 It can be seen that the respondent sought to cast his case in terms which would make out a case of breach of his employer's duty of care while, at the same time, steering as wide a berth as possible around any attribution of fault specifically linked to the use or driving of the "trolley truck". Although the respondent submitted to the contrary before Certoma ADCJ. It appears to me that particulars (e) and (f) appear to be related specifically to the incident rather than the system of work. The Judgment below 21 The appellant led evidence before Certoma ADCJ: a. that at the time the respondent fell, he was engaged in his employment as a trolley collector, b. that the "trolley truck" referred to in the Statement of Claim from which the respondent fell was a registered tractor owned by the appellant which was being driven by another employee, and c. that on 8 September 2000, the tractor was covered for third party insurance with the NRMA. 22 The respondent conceded before Certoma ADCJ that the circumstances of his alleged injury were such as would fit within the definition of a "claim" under the MAC Act 1999 and that he could have brought a claim within that legislation. However he argued that the particulars of negligence pleaded an action against the appellant "in its position as his employer for the unsafe system of work which placed him on a moving trailer in circumstances where he could foreseeably fall off and injure himself irrespective of the negligence or otherwise of the tractor driver." He submitted that the Statement of Claim did not complain of the driving of the tractor and any subsequent effect on the trailer. Thus, he submitted, his claim related to the nature and condition of his employment. He relied upon Leo N Dunn & Sons Pty Limited v McPhillamy [2000] NSWCA 343. 23 Certoma ADCJ accepted the respondent's argument that as the Statement of Claim was not cast as a claim in negligence under the MAC Act 1999, but rather asserted that the appellant had failed to provide a safe system of work for its employee, the respondent was not obliged to comply with the pre-conditions of the MAC Act 1999 in bringing the proceedings. 24 In reaching his conclusion, his Honour drew comfort from the following matters: first, the decision in Leo N Dunn & Sons Pty Limited v McPhillamy, secondly, the fact that the appellant did not point to any other authority in which it had been held that a plaintiff was precluded from bringing proceedings against a defendant on one basis notwithstanding the circumstances were capable of coming within the purview of the MAC Act 1999 and, finally, that there were no provisions in the MAC Act 1999 indicating that a matter coming within its scope could not be brought other than pursuant to that legislation. Submissions 25 The appellant argued that the respondent's accident was clearly a "motor accident" within the meaning of the MAC Act 1999 as the injuries alleged to have arisen were due to the fault of the owner or driver of the vehicle in the use or operation of the vehicle whilst it was being driven. It submitted that the fact that part of the fault related to an unsafe system of work in requiring the respondent to ride on the tractor while it was being driven negligently did not take the injury outside the scope of a "motor accident". 26 The respondent contended that the claim could be made outside the MAC Act 1999 scheme because his claim was framed as a breach of the appellant's duty of care in its capacity as his employer. 27 The respondent complained that the appellant was wrong to say that the circumstances of the accident came within the definition of "injury" in the MAC Act 1999 because that presupposed that the trolley truck was being negligently driven as well as there being negligence relating to the unsafe system of work. He submitted that he did not say it was the driving of the motor vehicle which was negligent and which caused him to slip off. Rather, he said his pleading asserted that it was the system of work which put him on the motor vehicle in the first instance which was negligent and that, thereafter, there was a failure on the part of the employer to take appropriate care for his safety in the workplace which was the negligence to which his injury might be attributed. 28 The respondent's solicitors provided particulars to the claimant's solicitors in response to a question in which they were asked to identify "what caused the plaintiff to slip off the trolley truck?" The response was: "The plaintiff instructs that whilst holding onto the back of the trailer, the trailer was fully loaded and the driver was speeding over a speed hump. As a result the plaintiff was unable to maintain his grip and position and was thrown from the trailer onto the floor". 29 The respondent submitted that the particulars had not been before Certoma ADCJ and that the case was not proceeding on the basis of a fault related to any speed hump or speeding at the time of the accident. He did not, however, resile from the particulars as accurately describing the circumstances of the accident. In my view it is appropriate to take them into consideration in determining the appeal. They give colour to particulars (e) and (f) which, as I have already pointed out, appear to relate specifically to the significance of the driving of the motor vehicle in relation to the respondent's injury. The MAC Act 1999 30 The MAC Act 1999 commenced on 5 October 1999. It applies to accidents which occurred after that date (s 2AA Motor Accidents Act 1988). 31 The terms "claim", "claimant", "injury" and "motor accident" are defined in s 3 (1) as follows: "claim" means a claim for damages in respect of the death of or injury to a person caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle. "claimant" means a person who makes or is entitled to make a claim "injury": (a) means personal or bodily injury caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle if, and only if, the injury is a result of and is caused during: (i) the driving of the vehicle… and "injured person" means a person who suffers such an injury." "motor accident" means an accident or incident caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle which causes the death or injury to a person. 32 "Motor vehicle" is defined in s 3 (1) of the MAC Act 1999 to mean a "motor vehicle or trailer within the meaning of the Road Transport (General) Act 1999. Section 3 of the latter Act, in turn, defines "motor vehicle" to mean "a vehicle that is built to be propelled by a motor that forms part of the vehicle." There was no issue that the trolley truck/tractor from which the respondent said he fell was a "motor vehicle" for the purposes of the MAC Act 1999. 33 Section 5 of the MAC Act 1999 describes its objects. Relevantly they are: "(a) to encourage early and appropriate treatment and rehabilitation to achieve optimum recovery from injuries sustained in motor accidents, and to provide appropriately for the future needs of those with ongoing disabilities, (b) to provide compensation for compensable injuries sustained in motor accidents, and to encourage the early resolution of compensation claims, (c) to promote competition in the setting of premiums for third-party policies, and to provide the Authority with a prudential role to ensure against market failure, (d) to keep premiums affordable, recognising that third-party bodily insurance is compulsory for all owners of motor vehicles registered in New South Wales … ." 34 Section 6 (1) provides: (1) In the interpretation of a provision of this Act or the regulations, a construction that would promote the objects of this Act or the provision is to be preferred to a construction that would not promote those objects. 35 Chapter 4 of the MAC Act 1999 deals with "Motor Accident Claims". Section 70, which is found in Part 4.1, deters a claimant from commencing proceedings without complying with the requirements of the law with respect to the reporting of the motor accident to a police officer but gives the court discretion to allow the proceedings to continue. It provides: (1) A claimant is required to ensure that the requirements of the law with respect to the reporting of the motor accident to a police officer have been complied with. (2) If a person commences proceedings in respect of a claim without such compliance, the person must provide a full and satisfactory explanation to the court for the non-compliance. The claimant is not required to do so if an explanation for the non-compliance was provided in the first instance to the insurer and the insurer did not reject the explanation within 2 months after receiving it. (3) If the court is satisfied that sufficient cause existed to justify the delay in reporting the motor accident to a police officer and that a report of the motor accident was made within a reasonable period having regard to the requirements of the law, the court may allow the proceedings to continue. 36 Section 72 relevantly requires claims to be made within six months of the motor accident. Section 73 permits a late claim to be made if the claimant provides a full and satisfactory explanation for the delay to the insurer. 37 Part 4.3 obliges an insurer to endeavour to resolve a claim by settlement or otherwise as justly and expeditiously as possible (subsection 80(1)). It is incumbent upon an insurer to give written notice to a claimant as expeditiously as possible as to whether the insurer admits or denies liability for the claim (subsection 81(1). Unless the insurer wholly denies liability for the claim, it is the insurer's duty to make a reasonable offer of settlement to the claimant within the time limits prescribed by subsections 82(1)(a) or (b) whichever is the later. 38 Part 4.3 also imposes an obligation on a claimant to cooperate fully with the person against who the claim is made and that person's insurer (s 85). Like obligations of cooperation are imposed upon the owner or driver of the motor vehicle concerned in the motor accident to which the claim relates. 39 Part 4.4 makes detailed provision for the assessment of claims by claims assessors. It applies to any claim, whether or not the insurer admits or denies liability (s 89(1)). A claims assessor to whom a claim is referred for assessment is required to assess both the issue of liability for the claim (unless the insurer has accepted liability) and the amount of damages for that liability and issue a certificate as to the assessment (s 94). An assessment of the issue of liability for a claim is not binding on any party to the assessment (ss 95(1)). An assessment of damages is binding on the insurer and must be paid by it if the insurer accepts liability under the claim and the claimant accepts the amount of damages in the settlement of the claim within 21 days after the certificate of assessment is issued (ss 95(2)). 40 Claims assessors are given extensive powers to require the provision of information (s 100) and to procure the attendance of parties at an assessment by the issuing of a summons (s 102). Claims assessors are given a measure of immunity from suit and are competent, but not compellable, to give evidence or produce documents in respect of matters in which they exercised their functions as a claims assessor (s 103). 41 Parties to an assessment are entitled to be represented at an assessment conference by a legal practitioner or by an agent (ss 104(2)). A claims assessor is required to take into account any written submissions prepared by a legal practitioner acting for a party to the assessment and submitted by or on behalf of that party (ss 104(4)). 42 Part 4.5 deals with "Court proceedings on Claims". Section 107 provides that "proceedings in respect of a claim may be taken in any court of competent jurisdiction." 43 Section 108 provides: (1) A claimant is not entitled to commence court proceedings against another person in respect of a claim unless: (a) the Principal Claims Assessor has issued a certificate in respect of the claim under section 92 (Claims exempt from assessment), or (b) a claims assessor has issued a certificate in respect of the claim under section 94 (Assessment of claims). (2) The provisions of this section are in addition to those of section 109. Accordingly, both sections are capable of applying to a claim. 44 Section 108 operates in terms as a blanket prohibition on the commencement of proceedings if the relevant certificates have not been issued. Section 109 (1) requires court proceedings to be commenced within three years of the date of the motor accident to which the claim relates but gives the court power to give leave to commence proceedings after the three years has elapsed. Section 109 (2) provides that time does not run for the purposes of the section when a claim has been referred for assessment and for two months after a certificate of assessment has issued. 45 Section 123 provides that a court cannot award damages to a person in respect of a motor accident contrary to Chapter 5. Part 5.2 in Chapter 5 makes detailed provision in relation to the recovery of damages for economic loss. Significant limitations are imposed upon the ability to recover such damages. Part 5.3 deals with the recover of damages for non-economic loss. Again significant limits are imposed on the quantum of damages recoverable under this head. The authorities 46 The authorities which have considered the question whether an injury fell within the terms of the Motor Accident Act 1988 (in which the terms "claimant", "claim", "injury" and "motor accident" are defined in the same terms as in the MAC Act 1999) notwithstanding that there was also a breach of an employer's duty of care fall into two categories: indemnity disputes between insurers under CTP policies and the workers compensation insurer and what I will, for convenience, refer to as pleading disputes turning upon the manner in which the injured individual's case was framed. Certoma ADCJ was not referred to any of these authorities with the exception of Leo N Dunn & Sons Pty Limited v McPhillamy. The indemnity cases 47 In Zurich Australian Insurance Limited v CSR Limited (2001) 52 NSWLR 193 an employer sought indemnity from its compulsory third party insurer pursuant to the policy required by the Motor Accidents Act 1988. The plaintiff was injured in the course of his employment while lifting a loading ramp which was part of a custom built trailer attached to a truck. After he was injured his employer arranged for a torsion spring to be fitted to each ramp hinge to assist in the lifting of the ramp. The employer submitted that the absence of such a spring was a defect in the vehicle such that the worker's injury fell within the definition of "injury" in the Motor Accidents Act 1988 having been caused during the use or operation of the motor vehicle by a defect in the vehicle. The motor vehicle insurer argued that there was no relevant defect but, rather, that the worker's injury was caused by the employer's failure to provide a proper system of work. 48 Spigelman CJ (with whom Mason P and Handley JA agreed) rejected this submission, saying (at [29] – [30]): "The first submission was, essentially, one of characterisation. The appellant submitted that the injury was not caused 'in the use and operation of' the trailer. Nothing in the language used, or the scope, purpose of operation of the Act, suggests that a dual characterisation of 'fault' is impermissible. The definition [in the Motor Accidents Act ] applies so long as the fault may be categorised in the way set out within it. It matters not that some other characterisation may also be appropriate." This issue has been determined against the Appellant in this Court. See NRMA Insurance Ltd v NSW Grain Corp (1995) 22 MVR 317 esp. at 319; Balfour Beatty Power Constructions (Australia) Pty Ltd v Government Insurance Office (NSW) (1996) 24 MVR 162 at 163-164; AMP General Insurance v Brett (1999) 27 MVR 492 at 495. In my opinion the reasoning in these cases is correct and should be followed." 49 The three authorities to which the Chief Justice referred concerned the question whether an injury which occurred while a motor vehicle was being loaded was one which occurred in the "use or operation" of the motor vehicle. 50 Of the three, NRMA Insurance Ltd v NSW Grain Corporation (1995) 22 MVR 317 is the most germane. In that case, Clarke JA (with whom Priestley and Powell JJA agreed) rejected a submission, made on behalf of a motor vehicle insurer, that if the correct characterisation of the fault which led to the injury employer's liability was failing to provide a safe system of work, then the negligence was not to be regarded as "in the use of the vehicle". His Honour said (at 319): "…I do not agree with the proposition that because it is proper to characterise the negligence as a failure to employ a safe system of work that that means that it is not negligence 'in the use of a vehicle'. Where, for instance, the unsafe system is in the manner of tying down a load so that it breaks free while it is actually being transported then, generally speaking, I see no reason why indemnity would be denied to an owner who became responsible in damages for personal injury as a consequence of that negligence. In other circumstances the employment of an unsafe system of work which incidentally involved the unloading of a vehicle may lead to a different result. In this respect I agree with what was said by the Court of Appeal in Queensland in Curtain Bros (Qld) Pty Ltd v FAI General Insurance Co Ltd [1995] 1 Qld R 142, at 146: "It is fallacious to seek to subsume this specific basis of legal liability into some wider or different basis merely because the presence of additional factors makes the other basis of liability also available. Thus, for example, it does not exclude the particular basis of the appellant's liability to the plaintiff in respect of the vehicle if it is also liable to her as an occupier in respect of the dangerous excavation or as an employer in respect of the unsafe place of work.... One basis of liability is not exclusive of the other ...". (Emphasis supplied) 51 In AMP General Insurance v Brett (1999) 27 MVR 492 Cole JA (with whom Beazley and Stein JJA) agreed) rejected a submission that an accident which occurred when a delivery boy jumped off the back of a milk truck into the path of a motorcyclist causing an accident, was properly regarded as independent of the use or operation of the vehicle so as to take it outside the ambit of the insurance cover required by the Motor Accidents Act 1988. His Honour regarded it (at 495) as " an integral part of the use of a milk delivery truck that someone delivers milk from it". So characterised "the injury was 'in a direct and proximate way', a result of the 'use or operation' of the vehicle…". 52 In Prospect County Council v Foster (2001) 33 MVR 228; [2001] NSWCA 117 the question arose whether the compulsory third party policy under the Motor Accidents Act 1988 responded to the plaintiff's claim or whether the plaintiff's industrial accident fell outside the policy. The covering clause in the policy provided cover "against liability in respect of the death of or injury to a person caused by the fault of the owner or driver of the vehicle in the use or operation of the vehicle …" – wording in substantially the same terms as the definition of "claim" in the MAC Act 1999. Handley JA (with whom Davies and Ipp AJJA agreed) held that the policy did not respond. The plaintiff had been electrocuted while working in a cherrypicker repairing electricity wires. The uncontradicted expert evidence was that the primary cause of the accident was the failure of test instrument to detect that the conductors were live and that the cherrypicker played no role in the accident, apart from bringing the plaintiff and his assistant into proximity to the live conductors where they had to carry out the necessary restoration work. The insured had submitted that injury occurred "in the use or operation of the vehicle" because the plaintiff could only be brought to close proximity with his workstation by the use of the cherrypicker. Handley JA rejected this argument (at [20]) on the basis that there was nothing wrong with the use of the cherrypicker as such. The mere fact it was being used when the plaintiff was electrocuted was not sufficient. Ipp AJA (at [31]) also pointed out that the use of the words "caused by" in the operative phrase in the relevant indemnity provision required a direct or proximate relationship, referring to Dickinson v the Motor Vehicle Insurance Trust (1987) 163 CLR 500 at [505]. 53 The most recent case in which these issues have been considered is Allianz Australia Insurance Limited v GSF Australia Pty Limited [2003] NSWCA 174 which concerned the question whether the plaintiff was injured in circumstances which fell within the definition of "injury" for the purposes of the Motor Accidents Act 1988 or the Workers Compensation Act 1987. The plaintiff was injured when he was unloading a truck manually, as directed by his employer, because the truck's unloading mechanism was inoperative. Mason P and Davies AJA (Santow JA dissenting) held that the circumstances fell within the meaning of "injury" for the purposes of the Motor Accidents Act 1988. Davies AJA (at [67]) described a submission that the plaintiff's injury was caused not by the defect in the vehicle, but "by the employer's negligence in directing that the defective vehicle be used and that the goods be moved manually during the unloading process…" as having "a subtlety about it that does not meld well with the Common Law's robust, commonsense approach to issues of causation." He agreed with Clarke JA's rejection of a "similar and equally subtle argument" in NRMA Insurance Limited v. NSW Grain Corporation. 54 Mason P also concluded that the plaintiff's injury was "a result of" the defective vehicle which was provided to the plaintiff in circumstances rendering its owner responsible for his injury within the meaning of that term in the statutory third party policy. While his Honour accepted (at [4]) that the legislative history and the Second Reading Speech to the Motor Accidents Act 1988 demonstrated an intention that the definition of "injury" would be narrower than its predecessor, his Honour did not take any assistance either from that matter or the recognition that the amendment was influenced by "cost-saving considerations." His Honour weighed against that proposition the beneficial reform reflected in the introduction of compulsory insurance of motor vehicles so that victims of motor vehicle accidents always had "a deep-pocketed defendant to sue." As he pointed out (at [9]) " 'Injury' is…the gateway that controls access to an award of damages under Part 6 of the Motor Accidents Act 1988 (see also s69 thereof) or damages under Chapter 5 of the Motor Accidents Compensation Act 1999 (see ss122-123 thereof)." He concluded that giving a narrow scope to "injury" would, in turn, narrow "the ultimate umbrella protection for victims, not all of whom can fall back on claiming against a defendant who is insured under the Workers Compensation Act 1987." 55 He also relied upon the fact that the definition of "injury" required the injury to be "a result of" rather than "the result of" (at [15] – emphasis supplied). On this basis, Mason P concluded that the injury was "a result of" the defective vehicle and (at [16]) that it did not matter that the injury was also a result of negligence in the vehicle owner's capacity as employer giving instructions to its employee. 56 Santow JA held (at [47], [49]) that, as a matter of legal causation, it was the employer's direction which led to the plaintiff's injury and that the failure of the loading mechanism was an earlier antecedent defect of lesser significance than the negligent direction. He construed the words "a result of" as requiring "identification of the conditions which were both necessary and sufficient to bring about the result (injury) and not merely one 'but for' condition". Applying this test, his Honour held (at [45]) that "the negligent direction to carry out an unsafe system of work was clearly given in the capacity of employer, not truck owner." 57 In reaching his conclusion Santow JA placed great weight on the Second Reading Speech (see at [29], [44]). That speech made clear, in his Honour's view, the "intended constriction of the reach of the CTP policy under the Motor Accidents Scheme". Coupled with the statutory injunction in s 2B directing a construction of the Act which promoted its object, he concluded that any narrowing of the coverage was supported by the "cost-saving objects of the MAA legislation" while "any extension does the opposite". 58 Davies JA also rejected (at [69]) a submission that the word "caused" in the definition requires the identification of "a direct cause" or "the proximate cause" of the injury. Santow JA, too, rejected (at [40]) the use of "illusory metaphysical notions like … 'proximate cause' or 'immediate cause'" in determining the cause of the injury (compare Prospect County Council v Foster, above and AMP General Insurance v Brett above (at [495]) (per Cole JA with whom Beazley and Stein JJA agreed). The Pleading cases 59 In Leo N Dunn & Sons Pty Limited v McPhillamy the opponent was granted leave pursuant to s 151D(2) of the Workers Compensation Act 1987 to commence proceedings against the claimant. The proceedings, in essence, alleged that the opponent was employed by the claimant as an interstate truck driver for a period of, at least, some seven or so months during 1996. During that period he was required to drive an International Prime Mover with attached triaxle tanker. His draft Ordinary Statement of Claim pleaded that he suffered a back injury in consequence of the claimant's negligence because of the shuddering of the cabin in the prime-mover which occurred when the vehicle was driven at between ninety and one hundred kph when the tanker was empty and, also, through sitting in a twisted seat. 60 The claimant asserted that the opponent ought not to have been granted leave to proceed under s 151D(2) because the claim was governed by Part 5 of the Motor Accidents Act 1988. 61 Mason P (with whom Meagher and Heydon JJA agreed) held (at [17], [19]) that Part 5 was only directed at the type of accident that occurred at a fixed point of time. As the opponent's claim related to an injury arising out the nature and conditions of employment, the claim was not one within Part 5 but, rather, was one which required leave under s 151D(2). 62 It seems possible that Dunn may have been decided differently if the defendant employer had pleaded it was the owner of the motor vehicle (see [19]), but that point was not developed by Mason P. 63 Certoma ADCJ accepted that Dunn & Sons Pty Limited v McPhillamy was not directly in point. In his view, however, it supported the proposition that even though a claim was capable of falling within the definition of "claim" under either the Workers Compensation or MAC Act 1999, a plaintiff was not compelled to bring proceedings under either respective Act to the exclusion of all other actions. 64 Contrary to Certoma ADCJ's view, in my opinion Dunn & Sons Pty Limited v McPhillamy was distinguishable. In that case the injury could be seen to have flown from the nature and condition of the plaintiff's employment over an extended period of time rather than a "motor accident" as that expression is defined. In this case the respondent's injury occurred at a fixed point of time. 65 In Peter Warren (Fairfield) Pty Limited v McMartin (1996) 24 MVR 235 Sheller JA (with whom Handley and Beazley JJA agreed) held that the respondent, whose Supreme Court statement of claim pleaded that her accident and the negligence of both defendants and "this cause" was "regulated under the provisions of the Motor Accidents Act 1988 as amended" had pleaded fault regulated by Part 6 of that Act and, therefore, fault in the use or operation of the vehicle. Accordingly he upheld a finding in the Compensation Court, that the respondent, who had claimed compensation under the Workers Compensation Act 1987 had not, by commencing the Supreme Court proceedings, made an election pursuant to s 151A(2) of the Workers Compensation Act, disentitling her to compensation under Division 4 of Part 3 of that Act. 66 Peter Warren is the only case in which the formality of pleading the Motor Accident Act 1988 was held to bring the case within the provisions of that legislation even though some of the particulars of negligence relied upon would ordinarily constitute allegations of breach of an employer's duty of care. While the dual characterisation issue was not discussed, the outcome was consistent with Zurich Australian Insurance Limited v CSR Limited. 67 The inter-relationship between the MAC Act 1999 and the Workers Compensation Act 1987 was considered by Wood CJ at CL in Pender v Power Coal Pty Limited [2002] NSWSC 925. The plaintiff had been injured on 15 December 1999 while working in a colliery operated by the defendant. He was injured while he and fellow employees were using an unregistered forklift to try to uncoil a reinforced water hose wound around a metal drum. The plaintiff conceded that the forklift was a "motor vehicle". It was not registered as it was used within the mine. It was not, therefore, covered by a compulsory third party policy (s 8 MAC Act 1999). The Nominal Defendant could not be involved because the accident did not occur on a road related area (judgment at [24], s 3 definition of "road" and s 33 (1)). 68 The defendant sought to strike out the proceedings on the basis that the plaintiff was unable to maintain the proceedings in the absence of certificates issued under either s 92 or s 94 of the MAC Act 1999. The parties agreed that an assessment of damages in respect of an injury caused by a motor accident within the meaning of the MAC Act 1999 was to be conducted in accordance with that Act whether or not a third party policy was on foot (judgment [29]). 69 Wood CJ at CL held (at [50]) that the plaintiff's claim was one for damages in respect of an "injury 'caused by the fault of the owner or driver of the motor vehicle in the use or operation of the vehicle'". His Honour also referred (at [55]) to NRMA Insurance Ltd v New South Wales Grain Corp and Zurich Australian Insurance Ltd v CSR Ltd as demonstrating that it did not matter that the plaintiff's case could also be characterised as based upon an unsafe system of work or upon the failure of an employer to provide appropriate plant or equipment or to properly supervise a work activity. It is clear that he regarded the fact that the plaintiff was injured while the drum was loaded onto the forklift as determining that the plaintiff's case revolved around fault in the use or operation of a motor vehicle. In those circumstances he regarded the authorities as compelling the conclusion (at [50]) that the plaintiff's case was one which was caused by the fault of the owner and/or driver of a motor vehicle in its use or operation. Consideration 70 Finally, attention should be paid to the nature of the provisions which the appellant relied upon as barring the course the respondent has pursued, s 70 and s 108. I have already noted that the language of s 70 does not operate as a prohibition on the commencement of proceedings as leave may be given to continue proceedings commenced without reporting the accident to the police. Section 108 does, however, operate as an absolute prohibition on commencement of court proceedings in respect of a "claim". That is apparent from its mandatory terms and from the authorities which have considered phrases substantially similar to the s 108 expression "not entitled to commence court proceedings". 71 In Hill v Bolt (1992) 28 NSWLR 329 Priestley JA (with whom Mahoney JA agreed) held (at 336-337) that the words "court proceedings cannot be commenced" in s 48 (3) of the Motor Accidents Act 1988 were mandatory with the consequence that proceedings commenced in breach of the Act were of no legal effect. His Honour applied Woods v Bates (1986) 7 NSWLR 560 at 567 where McHugh JA (with whom Hope JA agreed) said: "... Speaking generally, ... the proper approach is to regard a statutory requirement, expressed in positive language, as directory unless the purpose of the provision can only be achieved by invalidating the result of any departure from it, irrespective of the circumstances or resulting injustice." 72 Kirby P (at [31]) described the provision as indicating "the will of parliament expressed in unusually strong mandatory language." 73 In Baker v Rothmans of Pall Mall (Australia) Ltd (1999) NSWCCR374 Giles JA (with whom Sheller JA and Davies AJA agreed) held, applying Hill v Bolt, that s 106E(1) of the Workers Compensation Act 1987 which then provided that a worker "cannot commence court proceedings in respect of compensation under s 66" until certain statutory requirements had been fulfilled was a mandatory express prohibition. Proceedings commenced in contravention of that prohibition were, therefore, not valid. His Honour construed the provision as part of a scheme to promote the settlement of claims before commencement of court proceedings. Failure to construe the section as mandatory would undermine its purpose within that scheme. 74 In Akhrass v Allianz Australia Insurance Ltd [2002] NSWSC 772 Dunford J held without referring to Hill v Bolt and Baker v Rothmans of Pall Mall (Australia) Ltd that proceedings which were improperly commenced in contravention of s 108 could not be revived when an exemption certificate was issued. 75 Consistently with these authorities, the expression "a claimant is not entitled to commence court proceedings…" appearing in s 108 of the MAC Act 1999 should be interpreted as mandatory in nature. 76 The provisions of the MAC Act 1999 I have set out earlier in this judgment indicate a strong intention on the part of the legislature that any claim in respect of an injury or death which arises from a motor accident is to be resolved expeditiously through the assessment process rather than court proceedings. That interpretation is consistent with the purposes of the scheme outlined during the Second Reading Speech as being, among others, to resolve "claims early, outside the court system and in a non-adversarial manner": Motor Accidents Compensation Bill, Second Reading Speech, Legislative Council, 3 June 1999, Hansard p 901 at 904. Indeed it is clear that the MAC Act 1999 both continued and strengthened the policy introduced by the Motor Accidents Act 1988 to encourage early and prompt settlement of claims: see Hill v Bolt at 332, 335 – 6 (per Priestley JA); Salido v Nominal Defendant (1993) 32 NSWLR 524 at 530 (per Gleeson CJ), 538 (per Kirby P). 77 Construing s 108 as mandatory is consistent with the legislative scheme. The clear intention of the legislature in prohibiting the commencement of proceedings until Part 4.4 is complied with is to ensure that a claimant first submits his or her claim to assessment rather than to the judicial process. Indeed, even if a s 94 certificate has been issued and proceedings have been properly commenced, where significant evidence is adduced in the course of the court proceedings that was not made available to the claims assessor, the court is required to adjourn the proceedings until the party who has adduced that evidence has referred the matter for further assessment under Part 4.4 and a further certificate under s 94 has been issued (s 111). This over-riding obligation to submit claims to the process of claims assessment reinforces, if reinforcement be necessary, the legislature's intention that the assessment process should be pre-eminent. 78 In my view the legislative scheme should be interpreted consistently. Just as a third party insurer cannot escape liability under the CTP policy issued pursuant to the scheme (see s 10) by seeking to categorise the circumstances in which an injury took place as caused by breach of an employer's duty of care rather than a "motor accident" as defined so, too, a plaintiff should not be able to avoid the legislative consequences of having suffered "injury" in a "motor accident" by the device of pleading his case as arising from a breach of his employer's duty of care. Interpreting the MAC Act 1999 in this manner is consistent with the legislative purpose. It is also consistent with principles of statutory interpretation. 79 In order to give effect to the purpose of a statue it must be construed so that what cannot be done directly cannot be done indirectly: see Collins v Blantern (1767) 2 Wils 347 at 349; (1767) 95 ER 850 at 852 per Wilmot CJ applied in Secretary, Department of Treasury and Finance v Kelly (2001) 4 VR 595 per Ormiston JA at 601 in the following terms "when the courts find any attempt at concealment, they should 'brush away the cobweb varnish, and shew the transactions in their true light.' " Consistently with this principle, a statute must be applied to the substance rather than the form of a transaction: P. St. J. Langan, Maxwell on the Interpretation of Statutes, (First published 1875, 12th ed. 1969) at 137. 80 The respondent sought to distinguish Zurich Australia Limited v CSR Limited and NRMA Insurance Limited v NSW Grain Corporation Limited and Balfour Beattie Power Constructions (Australia) Pty Limited v GIO of NSW (1996) 24 MVR 162 on the basis that those cases dealt with competing liability under workers compensation and CTP insurance. While it is true those cases concerned the wording of the CTP policy, those policies were relevantly required to be in the same terms as the relevant motor accidents legislation. Nothing turned in any of the cases on the fact that a policy was being construed rather than legislation. Indeed in Allianz, even though the dispute was between two insurers, the Court approached the exercise as involving the interpretation of the MAC Act 1999 and the Workers Compensation Act 1987 respectively. Although Mason P referred (at [8]) to the critical causation question arising in the context of applying canons of construction of insurance contracts, it is clear that the Court regarded the legislative context as having greatest significance in determining the causation issue. 81 The real question, of course, is whether a particular case can properly be characterised as falling within the legislative net. The respondent of course conceded that the circumstances of his injury were such that he could fall within s 108, save for his argument that the manner in which his Statement of Claim was pleaded was sufficient to enable him to avoid its reach. 82 I am satisfied that concession was properly made. In order to be caught by the terms of s 108 it would be necessary that the respondent was a "claimant", meaning a person making or entitled to make a "claim" for damages in respect of an injury to him caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle if, and only if, the injury was a result of and was caused during the driving of the vehicle. 83 It is plain both from circumstances of the accident as described in the respondent's claim form and the particulars to which I have referred that the respondent's injury was caused by the fault of the owner or driver of the motor vehicle in its use or operation. The fact that it was the claimant's system of work which put the respondent on the trolley truck/tractor from which he slipped, does not detract from the proposition that it was, at least, the owner's "fault" which put the respondent in a position where, while the vehicle was being used or operated, he was susceptible to fall from it and be injured. That brings the circumstances of the respondent's injury and his action against the appellant within the meaning of the expression "claim" in the MAC 1999. 84 In this case there could be no doubt, in my view, that applying the terms of the Act and the authorities to which I have referred, the respondent's "injury" was suffered in circumstances which fell within the meaning of that term in the MAC Act 1999 and hence the definition of "claim" for the purposes of s 108. 85 It matters not that the "injury" may also be capable of being characterised as suffered as a breach of the appellant's duty of care as employer. Once it is capable of being characterised as an "injury" within the MAC Act 1999, any "claim" to recover damages in relation to it must be pursued in accordance with the legislative scheme. 86 As the statutory pre-conditions to the commencement of proceedings had not been complied with, the proceedings were not properly commenced and the Statement of Claim should have been struck out. 87 It should be pointed out that this conclusion does not prevent the respondent from, in due course, taking court proceedings. It merely means that in the first instance he must comply with the legislative scheme and submit his claim for assessment. If that is unsuccessful in the circumstances in which I have described and the relevant certificates are issued he can then pursue his claim through the court process. Leave to Appeal 88 The appellant submitted that the case was one in which Leave to Appeal should be granted on the basis of Itek Graphix Pty Limited v Elliott (2002) 54 NSWLR 207 at [154 – 165 per Ipp AJA]. Ipp AJA (with whom Spigelman CJ and Sheller JA agreed) held that interlocutory appeals which were capable of disposing of the entire case should, in effect, be encouraged. I agree. Orders 89 I would make the following orders: (1) Grant the appellant leave to appeal against the decision of Certoma ADCJ. (2) Direct the appellant to file in the registry of the court within 48 hours a Notice of Appeal in the form of the draft handed to the court. (2) Allow the appeal. (3) Order that: (a) the judgment of Certoma ADCJ of 12 July 2002 be set aside; (b) that the respondent's Statement of Claim be dismissed; (c) that the respondent pay the appellant's costs of the District Court proceedings. (d) that the respondent pay the appellant's costs of the appeal and the application for leave to appeal. ********** Last Modified: 08/28/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.