New South Wales Court of Appeal CITATION: Ron Lai Plastic Pty Limited v Cui Ngo [2010] NSWCA 128 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): 28 May 2010 JUDGMENT DATE: 28 May 2010 JUDGMENT OF: Beazley JA at 1; Hodgson JA at 44; Tobias JA at 50 EX TEMPORE JUDGMENT DATE: 28 May 2010 DECISION: The appeal is dismissed with costs. CATCHWORDS: INTERPRETATION – Motor Accidents Compensation Act 1999 – meaning of "motor accident" – plastic extrusion machine falling in the course of being moved by a forklift – whether a "motor accident" in the Motor Accidents Compensation Act 1999 LEGISLATION CITED: Motor Accidents Compensation Act 1999 Workers Compensation Act 1987 CASES CITED: Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 PARTIES: Ron Lai Plastic Pty Limited (Appellant) Cui Ngo (Respondent) FILE NUMBER(S): CA 2009/298456 COUNSEL: K Andrews (Appellant) S Norton SC; M Daley (Respondent) SOLICITORS: Leitch Hasson Dent (Appellant) Brydens (Respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 4546/2007 LOWER COURT JUDICIAL OFFICER: Christie ADCJ LOWER COURT DATE OF DECISION: 20 May 2009 - 14 - IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 2009/298456 BEAZLEY JA HODGSON JA TOBIAS JA Ex tempore 28 May 2010 Ron Lai Plastic Co Pty Limited v Cui Ngo Judgment 1 BEAZLEY JA: This is an appeal from a decision of Christie ADCJ of 20 May 2009, in which his Honour found a verdict for the respondent, who was injured in an accident on 9 February 2006, when a dye, being a part of a plastic extrusion machine (the machine), fell on him (the accident). The trial judge found that the dye fell in the course of the machine being moved by a forklift in circumstances where the incident was properly characterised as a "motor accident" within the meaning of the Motor Accidents Compensation Act 1999. 2 The accident occurred during the course of the respondent's employment with the appellant, who contended that the incident was not a "motor accident" within the meaning of the Motor Accidents Compensation Act, but that the respondent's cause of action was governed by the provisions of the Workers Compensation Act 1987. That is the sole issue raised on the appeal. If the appeal is successful, then the appellant seeks a verdict in its favour, as the respondent has failed to comply with the statutory requirements for the bringing of a claim under the Workers Compensation legislation. Background facts 3 The accident occurred on 9 February 2006, at the appellant's factory premises situated at 189 Woodville Road, Villawood. The respondent was employed by the appellant as a delivery driver. On the day of the accident, he had driven to Padstow to pick up the machine, which had been sent out for repair. The truck the respondent was driving was a 2 tonne pantechnicon with roller doors at the back and left hand (passenger) side. The machine was about 1.5 m high and about 1.5 m round. The respondent estimated that it weighed between 400 and 500 kg. The machine was loaded onto his truck by a forklift. The machine itself was sitting on a pallet which the respondent said was, at that stage, in good condition. The pallet was secured onto the truck with a rope. 4 Upon his return to the appellant's premises, the respondent noticed that the pallet on which the machine was resting was damaged. Having observed that the pallet was broken, the respondent informed the forklift driver, Kuoc Ko Lac (Mr Lac), that it would be dangerous to lift it with the forklift. The respondent said he had a discussion with Mr Lac about how to safely unload the machine. Mr Lac said that, "he found a secure way to do it and ask me to help him untie the rope". The respondent said that at this point he was standing close to the machine, "but before in front of the forklift … on the ground" and that Mr Lac was sitting in the forklift, which was positioned close to the back doors of the truck. The respondent said that: "When [he] was about to untie the rope [Mr Lac] then put the forklift through the machine and pull[ed] back the forklift." 5 The respondent said that Mr Lac did so without warning. He said that he told Mr Lac to stop, but Mr Lac did not do so. The respondent said that he was less than half a metre from the machine and that when Mr Lac started to move the forklift back, he tried to get away. However, when he started to move, the machine started to fall onto the ground, landing on his leg. 6 The respondent completed a Report of Injury form on 26 February 2006, in which he gave the following explanation of how the accident occurred: "A workmate was unloading a plastic extruder from the back of the truck. I was at the truck's side door to check that the machine could be lifted. The pallet was broken and the machine couldn't be lifted. I told my workmate to stop. He didn't. Shortly after a rope stabilising the machine broke which propelled it to the side door. Machine fell through door and dropped between my legs injuring my lower legs." 7 On 30 June 2006, the respondent signed a Motor Accidents Claim Form. It appears the form was filled out by a solicitor, John Truong, employed by Brydens, the respondent's present solicitors. Under "Description of the accident", the following appears: "Whilst the pallet and the machine were on the tynes of the forklift and were aloft, the whole load toppled off the forklift and onto [the respondent]." 8 The respondent agreed in cross-examination that this statement reflected what he told his solicitors as to how the accident occurred. 9 The respondent was vigorously challenged in cross-examination as to the description of the accident he had given. In essence, the challenge in cross-examination was as follows. It was suggested to the respondent that, having informed Mr Lac that the pallet was broken, Mr Lac lifted the machine slightly so that the respondent could get the broken pallet out and that at the same time, the respondent and Mr Lac removed a piece of board that sat between the pallet and the machine. An unbroken pallet was then placed onto the truck and Mr Lac got back into the forklift and lowered the extrusion machine down onto the fresh pallet. The cross-examination continued to the effect that after Mr Lac had lowered the machine onto the new pallet, it was unstable and the respondent tried to hold it. At this stage, the appellant asserted that the respondent was standing in the back of the truck and that the respondent and the machine fell out of the side door of the truck at almost the same time, the machine landing on the respondent's leg. 10 The respondent denied this version of the accident. He said that the broken pallet was tied up with a rope so that it could not be pulled out. Rather, he said: "I saw Lac lifting up the pallet and the machine and I saw that the machine was about to fall. I tried to escape but it was too late." 11 In answer to a direct question that just before the accident he was in the truck and holding onto the machine, the respondent said: "[Mr Lac] has asked me to come up to the truck and undo the rope. I stepped up, but I could not do it because I could not hold the heavy machine, so I didn't do [it]." 12 He said that because he realised the danger, he did not attempt to undo the ropes. He denied holding on to the machine. The respondent expressly denied that he fell out of the side door, with the machine falling out after him. He said: "I already stepped down off the truck before the machine fell onto me." 13 The respondent also denied that just before the accident happened, Mr Lac had already lowered the machine down onto the floor of the truck and that the forklift was not in contact with it. 14 Mr Lac did not give evidence and the appellant failed to give any explanation as to why he had not been called. The trial judge accordingly drew a Jones v Dunkel inference that Mr Lac could not have assisted the appellant's case that the accident was not a motor accident: Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298. 15 The appellant called one witness, Mr Jones, who was employed by the appellant at the time of the accident as a printer. Mr Jones said that on the day of the accident, he noticed that the forklift driver, Mr Lac, was throwing bits of a broken pallet out of the back of the truck. He said that about 10 minutes later, he was going out for morning tea and walked down the driver's side of the truck. When he got to the rear: "The forklift was there with the driver on it and there was a Chep pallet in the back or almost in the back and the truck was at the back and I couldn't see too much that was it, he was in the way to see anything else." 16 Mr Jones confirmed that the pallet he saw was sitting on the tray of the truck, but he did not recall whether the forklift was still in contact with it. His direct response to this question was: "At times it may have been I don't recall." 17 When asked if the forklift at that time was moving back and forwards, or was stationary, Mr Jones' initial response was that he did not know. He added: "It wouldn't have been moving partly because I walked around the back of it two seconds later." 18 Mr Jones said that he saw the respondent inside the truck near the opening of the side door, hanging on to the machine. He said he could not see much, so he walked around to the side door. When asked what he saw, he said: "Well we were only there a minute trying to figure out what was going on when poor Cui [the respondent] fell out and closely followed by the dye which … hit him." 19 Mr Jones agreed there was no doubt that Mr Lac was driving a forklift, doing something at the back of the truck, but that he could not tell exactly what he was doing. He agreed that he did not know what had happened immediately before the accident when, on Mr Jones' version, the respondent fell out of the side door closely followed by the machine. In particular Mr Jones agreed that he didn't know what had really happened as he could not see exactly what was going on in the back of the truck and he was on his way around to the side to get a decent look when the respondent came out of the side door of the truck closely followed by the machine. However, he agreed that there was no doubt that Mr Lac was driving his forklift doing something in the back of the truck. Mr Jones was certain that the respondent fell out of the truck and did not get out of the truck a moment or two before the machine fell out on top of him. 20 Mr Jones was cross-examined as to whether the forklift was moving. His evidence was as follows: "Q. You saw the driver driving the forklift, is that right? A. It was stationary, he wasn't driving. Q. Mr Jones, only a few moments ago when Mr Andrews asked that question you said you didn't know whether it was moving, but if it was reversing it wasn't reversing much, because you walked behind it, that's what you said? A. Yeah I said it wasn't moving. Q. Do you not see the difference between not moving at all and it might've been moving but not much? A. I don't know. How do I explain what you're asking me? But it wasn't ripping along or doing anything-- … Q. Nobody is suggesting that. But you don't know whether it was moving slowly in the vicinity of the back of the truck or not do you? A. Well it was stationary because I walked around behind it, stationary when I walked around it. Q. You are trying to be as accurate as you can are you, Mr Jones? A. Absolutely, yep. Q. What you said to Mr Andrews was it wasn't moving far because you walked behind it? A. Mm mm. Q. Well that's the truth isn't it? A. Well yeah. Q. You wouldn't have a clue whether it was absolutely stationary or not all you'd know is that it wasn't moving quickly or a long distance? A. That's true. Q. And you've already said to me that you couldn't tell whether the tines of the forklift were completely under the pallet? A. That's true. Q. But your impression was that they were somewhat under the pallet, correct? A. That's true yeah." 21 Mr Jones was also asked about the statement he had made to WorkCover, in which he said: "I saw [Mr Lac] on the forklift. He was on the forklift trying to put the pallet in I assume." 22 Mr Jones said that it was easy to make assumptions at that time, but that wasn't what he actually saw. He was asked: "Q. What you saw was completely consistent with [Mr Lac] on the forklift with a pallet on the tines? A. Yeah." He confirmed that this was so in answer to a question of the trial judge. 23 It was the respondent's case that his injury was a "motor accident" within the meaning of the Motor Accidents Compensation Act. The availability of a claim for damages under the Act is effectively determined by the legislative provisions which define "claim", "fault", "injury" and "motor accident": s 3. Those definitions are 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. fault means negligence or any other tort. 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, or … 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 of or injury to a person." 24 There is no dispute between the parties that if the machine was dislodged as a result of the forklift coming into contact with it, this was a "motor accident" within the meaning of the Motor Accidents Compensation Act. The appellant did not contend that if the trial judge's inferential finding that the forklift caused the machine to dislodge was accepted, that the forklift driver was not thereby negligent. Accordingly, there is no issue on the appeal as to "fault" (provided his Honour's finding is otherwise upheld). Likewise, there is no issue that on his Honour's finding the respondent suffered "injury" or that the forklift was a motor vehicle within the meaning of the Motor Accidents Compensation Act. 25 The case that the appellant sought to make out in cross-examination of the respondent was not conceded by the respondent, who maintained and more clearly explained his case that the forklift driver had placed the tines of the forklift into the old pallet upon which the machine was still sitting and had started to lift it when the machine became unstable and fell out of the truck onto him. He also maintained that he saw the danger and had already exited the truck when the machine fell. 26 However, the appellant relies upon the evidence of Mr Jones to establish a case that the respondent was endeavouring to move the machine which was on the floor of the truck, the broken pallet having been removed, and that in the course of so doing, both the respondent and the machine had fallen from the truck. It was submitted that there was no evidence that the forklift came into contact with the machine which caused it to fall from the truck, or that the machine, even if it was on a pallet, fell as a result of the forklift moving the pallet. Accordingly, there was no evidence to support either of the alternate inferences drawn by his Honour. It followed on this argument that the accident having occurred in the manner for which the appellant contends, the accident was not a "motor accident" within the meaning of the definition in the Motor Accidents Compensation Act. The trial judge's findings 27 In referring to the respondent's evidence, the trial judge noted that it had always been the respondent's version of events that he was on the ground, at the side of the truck, not on it, and that the machine fell out of the truck onto him. His Honour referred to Mr Jones' evidence that the respondent fell out of the side of the truck and the dye fell onto him, or fell out, if not at the same time, immediately after the respondent. His Honour observed that it was not entirely clear whether the respondent fell out of the truck or jumped out. His Honour stated that he did not think a lot turned on that, except that he: "… would have some reservations about [the respondent's] evidence, that he was not actually on the truck and fiddling about in some way attempting to assist the forklift driver in removing [the machine]." 28 His Honour noted that the appellant's defence centred around the fact that there was no evidence the forklift was the instigator of the incident, in the sense that it was the use of the forklift that caused the machine to fall out of the truck onto the respondent. His Honour said that he found that proposition impossible to accept. His Honour's reasoning was as follows: "There is absolutely an inescapable inference in any event, that the forklift was in operation, that the forklift driver was attempting to either put this piece of machinery onto a fresh pallet, he having apparently removed the old damaged pallet or otherwise he was attempting to lift the piece of machinery with the new pallet in place. It would be impossible to say on the evidence, which of those two events was taking place but that the forklift was the piece of machinery that caused the other piece of machinery to fall out of the truck is an absolutely inescapable inference. It is supported by the evidence of [the respondent], even though I have some reservations about [the respondent's] involvement in what was actually happening to this piece of machinery. The only person who could say with any complete accuracy as to what part the forklift played in dislodging this piece of machinery is the forklift driver. There is in this case, a very strong inference pursuant to the principles enunciated in Jones v Dunkel that anything the forklift driver could have said would not have assisted [the appellant's] assertion that this was not a motor accident and that this was not a dislodgment of the piece of machinery by means of the use of the forklift." 29 His Honour continued: "I accept [the respondent's] evidence and it is broadly speaking, supported by the evidence of Mr Jones that this piece of machinery was dislodged out of the truck immediately after [the respondent] was or alternatively, [the respondent] had jumped out and then the dye fell out of the truck onto him as a result of the manipulation of the dye by the forklift driven by the forklift driver. I have therefore found a verdict for [the respondent]." 30 The appellant submitted that the inferences drawn by his Honour in the first of the two passages to which I have referred are not supported by the evidence. There is merit in that argument. Those inferences in effect reflect the case that the appellant unsuccessfully sought to make out in cross examination of the respondent. The inferences are not supported by the evidence of either the respondent or Mr Jones. The appellant contended therefore that his Honour erred in finding a judgment for the respondent and relies upon the evidence of Mr Jones to establish that the machine was on the floor of the truck and that the respondent was moving it when the accident happened. 31 The respondent submitted that in the passage set out at in which his Honour referred to the "inescapable inference" (set out above), his Honour was dealing with the case advanced by the appellant which he rejected. It was submitted that the ratio of the decision was to be found in the second of the two passages of his Honour's judgment set out above, namely, that the machine fell out of the truck as a result of the manipulation of the dye by the forklift. It was submitted that that finding (albeit in very general terms) was supported by the respondent's evidence. 32 Although I have difficulty with the passage of his Honour's judgment of which the appellant complained, there are two factors that lead me to the conclusion that the appeal should be dismissed. 33 First, the trial judge accepted the respondent's evidence, with the qualification that he was not sure whether the respondent was knocked off the truck by the machine, or whether he had already exited the truck just before the machine fell onto him. His Honour appears to have expressed a preference for the former, but considered that it did not matter which was correct, because the inescapable inference was that the forklift was in operation and moved or touched the machine, thus dislodging it. 34 I have set out in some detail the description of the accident given by the respondent, both in examination in chief and in cross-examination. There are, two pieces of evidence which essentially describe how the accident happened. 35 In his evidence in chief, the respondent said that he was about to untie the rope which was attached to the broken pallet when Mr Lac "put the forklift through the machine and pull back the forklift". He said that he told Mr Lac to stop and that when he did not, he tried to get out of the way, but it was too late. He then said, "when I started escaping out, the machine started falling aside and on my leg, yeah landed on the ground". 36 In cross-examination, in refuting the proposition that he was holding onto the machine when it and that he fell out of the side of the truck, the respondent explained that he saw Mr Lac lift up the pallet (which, on the respondent's version, was the broken pallet) together with the machine and said that he saw the machine was about to fall. He said he tried to escape, but it was too late. 37 Both these passages were direct evidence that the forklift was in contact with the machine at the time that it commenced to fall in support of his Honour's finding that the machine was dislodged by the forklift. 38 His Honour found that Mr Jones' evidence generally supported the respondent's evidence. The appellant contested that this was so and relied in particular upon the fact that Mr Jones saw the new pallet sitting on the tray of the truck, that the respondent was inside the truck, that the respondent was hanging on to the machine, that the machine was on the floor on its wheels and that the respondent fell through the side door and landed on his back. 39 His Honour did not deal with the evidence of either the respondent or Mr Jones in any detail. However, his Honour's failure to refer to the detail of that evidence does not demonstrate appealable error. 40 First, there is no ground of appeal that raises the question. Ground 5, upon which the appellant relies, raises a different issue. 41 Secondly, the accident happened very quickly, and on Mr Jones' own evidence, he did not see everything that happened. However, he agreed in cross-examination that he did not know whether the forklift was absolutely stationary or not and he agreed that his general impression was that the tines of the forklift were somewhat under the pallet and that forklift driver was doing something in the back of the truck. Given this evidence, his Honour's comment that, "broadly speaking", Mr Jones' evidence supported the respondent's evidence, is maintainable. 42 I would add that Mr Jones' evidence that the respondent was trying to "hang on to the machine" was improbable, given the weight of the machine. He may in the limited time and view he had of the activities in the truck misconceived what the respondent was doing in the truck but I do not need to be concerned with any such hypothetical. It cannot be overlooked that his Honour made a favourable credit finding in respect of the respondent's evidence, except that he could not determine whether the respondent had jumped or was knocked out of the truck. The respondent was adamant that he did not move the machine and that it fell whilst it was being moved (whether on or off a pallet does not matter for the point in issue) by the forklift. The acceptance of the respondent's evidence in that regard was evidence that satisfied the statutory definition of a motor accident. 43 In my opinion, the appellant has failed to demonstrate appealable error and the appeal should be dismissed with costs. 44 HODGSON JA: I agree with the orders proposed by Justice Beazley and with her reasons. I would just add this. 45 In order for this accident to come within the provisions of the Motor Accidents Compensations Act, it was necessary that the respondent's injury firstly be caused by the fault of the driver of the forklift truck in the use or operation of the vehicle, and secondly be the result of and caused during the driving of the vehicle. 46 The respondent's evidence was that, to his observation, the machine fell as a result of contact with and movement of the forklift. Mr Jones did not and could not contradict this evidence. The respects in which Mr Jones' evidence did contradict the respondent's evidence did not require the primary judge to reject this central feature of the respondent's evidence, and in fact the judgment of the primary judge indicates that he accepted it. 47 In those circumstances, where the driver was not called and no explanation for this was given, it was well open to the primary judge to accept that the machine did fall as a result of contact with and movement of the forklift, and that this in turn was due to the negligence of the driver. 48 Whether the movement of the forklift was due to the raising or lowering of the tines or movement of the whole forklift truck, it was accepted by the appellant that in either case the driver's operation of the machine to this effect would amount to driving the machine. 49 Accordingly, both requirements I referred to at the beginning of this judgment were satisfied in this case. 50 TOBIAS JA: I agree with the orders proposed by the presiding judge and with her reasons and with the additional reasons advanced by Justice Hodgson. ********** 30/06/2010 - Incorrect date of judgment - Paragraph(s) Coversheet DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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