District Court New South Wales Medium Neutral Citation: Rolton v Corowa Golf Club Ltd [2019] NSWDC 699 Hearing dates: 14 November 2019 Date of orders: 26 November 2019 Decision date: 26 November 2019 Jurisdiction: Civil Before: Judge Levy SC Decision: See paragraph [18] for decision. Catchwords: PROCEDURAL AND OTHER RULINGS – determination of separate question pursuant to UCPR r 28.2 – whether the plaintiff's injury falls within the scheme of the Motor Accidents Compensation Act 1999 Legislation Cited: Motor Accidents Compensation Act 1999 (NSW), s 3 Uniform Civil Procedure Rules, r 28.2 Workers Compensation Act 1987 (NSW) Workplace Injury Management and Workers Compensation Act 1998 (NSW) Cases Cited: Allianz Australia Insurance Ltd v Certain Underwriters at Lloyd's of London Subscribing to Policy Number B105809GCOM0430 [2019] NSWCA 271 Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; 221 CLR 568 AMP General Insurance Ltd v Kull & Anor [2005] NSWCA 442 Inasmuch Community Inc v Bright & Anor [2006] NSWCA 99 RG & KM Whitehead Pty Ltd v Lowe [2013] NSWCA 117 Suncorp Metway Insurance Limited v Sichter [2005] QSC 164 TVH Australasia Pty Ltd v Chaseling [2012] NSWCA 149 Category: Procedural and other rulings Parties: Robert James Bolton (Plaintiff) Corowa Golf Club Limited (Defendant) Representation: Counsel: Mr P Mooney SC (Plaintiff) Mr J Gracie (Defendant) Solicitors: Masselos & Co (Plaintiff) Lee Legal Group (Defendant) File Number(s): 2019/150594 Publication restriction: None Judgment Factual background 1. The plaintiff, Mr Robert Rolton, brings these proceedings against the defendant, Corowa Golf Club Limited, his employer, claiming damages for negligence in relation to an injury he sustained in the course of his work at the defendant's golf course on 19 July 2004, when he was struck by the defendant's backhoe, which was being operated by another of the defendant's employees. Separate question for determination 1. By a notice of motion filed on 2 August 2019, the parties have identified a separate question to be determined pursuant to UCPR r 28.2, namely whether the injury suffered by the plaintiff on 19 July 2004 falls within the terms of the Motor Accidents Compensation Act 1999 (NSW) ("MAC Act"). 2. The determination of that question is of considerable importance to both parties as it is influential on the related question of which compensation scheme should apply to the assessment of the plaintiff's damages. Evidence 1. The plaintiff's motion is supported by an affidavit of his solicitor, Gregory Masselos, affirmed on 15 August 2019, together with his own affidavit sworn on 15 October 2019. Both affidavits were read without objection. Neither deponent was required for cross-examination. The defendant called no evidence at the hearing of the motion. 2. The backhoe involved in the plaintiff's accident was of a kind represented by the photograph appearing below, as extracted from Exhibit "A". [Exhibit "A"] Facts not in dispute 1. On the day in question, the plaintiff was working for the defendant as an assistant greenkeeper and golf course superintendent. At the time of the incident he was supervising his co-worker, Mr Trent Venox, who was operating the defendant's backhoe to dig out a tree stump. That vehicle was not registered although it was capable of being registered and driven under motorised power. 2. Immediately before the plaintiff was struck, Mr Venox had stopped digging with the backhoe at the request of the plaintiff so that the progress of the work could be inspected. At that time, the backhoe was stationary, and it was supported by its stabiliser feet. As the plaintiff walked towards the hole to inspect it, Mr Venox, who was in the driver's seat of the vehicle and in command of its controls, stood up to inspect the hole that he had dug. 3. The plaintiff explained, without contradiction, that the incident had occurred because Mr Venox had stepped onto the foot pedal as he stood up whilst positioned in the driver's seat. 4. In those events, Mr Venox had somehow operated the controls of the vehicle so that the backhoe had swung around and struck the plaintiff on his right hip, following which he was then propelled a distance of about 3 to 4 metres, and he thereby suffered bodily injury. Submissions of the parties 1. On behalf of the plaintiff it was submitted, based on the settled interpretation of the aggregated terms bodily injury caused by a collision with a part of the vehicle due to fault in the vehicle being driven or running out of control, where contact between the vehicle and the plaintiff caused bodily injury, the plaintiff's injury falls within the scheme of the MAC Act as s 3(a)(ii) of that Act is engaged: AMP General Insurance Ltd v Kull & Anor [2005] NSWCA 442, at [52]; RG & KM Whitehead Pty Ltd v Lowe [2013] NSWCA 117, at [60]-[61]. 2. On behalf of the defendant, it was submitted that the decision in RG & KM Whitehead Pty Ltd is factually distinguishable because in this case it was the backhoe component of the vehicle that had swung around and struck the plaintiff whilst the stabilisers of the vehicle were down. In that regard, it was argued that the vehicle should actually be used as a vehicle for a collision to be considered as being an effective cause of an injury: Inasmuch Community Inc v Bright & Anor [2006] NSWCA 99, at [43]-[44]. Legislation 1. At the date of the accident, the MAC Act contained the following definition of "injury" in s 3: "3 Definitions In this Act: ... 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 (ii) a collision, or action taken to avoid a collision, with the vehicle, or (iii) the vehicle's running out of control, or (iv) such use or operation by a defect in the vehicle, and (b) includes: (i) pre-natal injury, and (ii) psychological or psychiatric injury, and (iii) damage to artificial members, eyes or teeth, crutches or other aids or spectacle glasses, and injured person means a person who suffers such an injury." Principles 1. At the outset of the consideration it must be recognised that there are no bright lines to be drawn between the legislative schemes for compensation under the MAC Act and the regime governed by the Workers Compensation Act 1987 (NSW) and the Workplace Injury Management and Workers Compensation Act 1998 (NSW): TVH Australasia Pty Ltd v Chaseling [2012] NSWCA 149, at [23]. The schemes can coalesce or overlap. The determination of the separate question is dependent upon findings of fact. 2. As was pointed out to counsel for the defendant during argument, to the extent that the schemes may overlap, that is simply a matter to be resolved by an application of the principles of double insurance, possibly requiring that there be a sharing of loss as between insurers: Allianz Australia Insurance Ltd v Certain Underwriters at Lloyd's of London Subscribing to Policy Number B105809GCOM0430 [2019] NSWCA 271. That process is not a determinant of the separate question that has been identified for decision in this instance. Determination of the factual dispute and the separate question 1. In my view, the distinction sought by the defendant based on the cited passage in the decision in Inasmuch as cited at [11] above, involves a distinction without material significance because the backhoe component which struck the plaintiff was part of the one vehicle which was being operated, and it was not being operated as a separate component when Mr Venox inadvertently stepped on a control pedal. The circumstances were difference in the case of RG & KM Whitehead Pty Ltd. 2. I do not accept the defendant's submission, based on the cited portions of the decision in Inasmuch, as to the elements required for there to have been a collision. This is because, as was referred to at [44] in that case, for the scheme of the MAC Act to apply, it is not necessary for a motor vehicle to be in motion: Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; 221 CLR 568, at [131]. 3. In argument, the defendant also pointed to a first instance decision in Suncorp Metway Insurance Limited v Sichter [2005] QSC 164. In my view, that decision is distinguishable from the facts in the present case. That decision involved the factual question of whether the vehicle ceased to be driven whilst the lifting device on a garbage truck was being operated. In the present case, the driver remained at the controls but mistakenly operated the controls on the vehicle. 4. For the above reasons, pursuant to UCPR r 28.2, I find that the injury suffered by the plaintiff on 19 July 2004, and which is the subject of these proceedings, falls within the scheme of the MAC Act. Costs 1. As the separate question posed by the parties has been determined in favour of the plaintiff in accordance with the order he has sought in his notice of motion, the defendant should pay the plaintiff's costs of the motion for determination of the identified separate question. ********** 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. Decision last updated: 26 November 2019