ANALYSIS OF NSW COURT OF APPEAL DECISION Inasmuch Community Inc v. Bright & Ors 2006 (nsw) ca99 2nd may 2006
In the case of Inasmuch, the Court was requested to look at the issue of whether the claim arose from negligent actions of the individual or whether it was a claim that fell under the provisions of the Motor Accident Compensation Act. Was the injury a “result of and caused during a motor collision with a motor vehicle” pursuant to the definition as is required under the definition of injury.
The main issue to determine was “the cause of the accident”.
On 19 September 2003 a vehicle was being inspected for sale. Mr Bright was inspecting the vehicle that was owned by the Defendant. The vehicle was a truck. Unfortunately the rear door of the truck was not securely latched and had been opened and a strong gust of wind flung the door shut and in doing so struck Mr Bright in the back.
Proceedings were commenced allegedly due to the negligence of the owners of the truck and in particular their driver in failing to secure the truck and in particular the rear doors. The CTP insurer believed that this claim fell under the provisions of the Motor Accident Compensation Act in that it was an injury arising or caused by a motor vehicle. The Court of Appeal in looking at the matter decided and held as follows:
The key issue was that of the definition of injury. The majority of the Court of Appeal looked at the legislative intention which was to impose both a temporal and causal requirement that is looking at the words “if and only if the injury is a result of a caused during”.
So clearly there were 2 requirements. It had to be “a result of” and “caused during”.
The second leg looking at the words “caused during” required a narrow construction that the Court had to look at was “collision”. That is there had to have been some form of a collision. It looked at the definition of the phrase “collision” and again the Court of Appeal said that it had to look at a wider scope of the definition.
Ultimately the Court of Appeal found that the effective cause of the injury sustained was as a result of the negligence of the employee who was supposed to have in the carrying out of his employment tasks, ensured that the rear door of the truck had in fact been securely latched and shut. The fact that a gust of wind caused the door to be flung, the Court held that this was the negligent act by them and did not fall under the strict definition of a motor car accident. The Court of Appeal held that it was not an injury that fell under the definition of motor accident. The Court found that whilst looking at the definition of incident caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle, the use or operation was interpreted to refer to the driving of the vehicle. In this particular instance there was no collision, the vehicle was being inspected. Accordingly there was no claim for compensation under the Motor Accident Compensation Act.
The injured person was entitled to commence proceedings under the Civil Liability Act for the negligent actions of the defendant’s agents and employees.
In a similar case run by Mr Vrege Kolokossian, Accredited Personal Injury Specialist Lawyer at Gerard Malouf & Partners, we represented a gentleman from the North Coast who had been delivering goods to a building site. The driver of another truck who was also delivering goods to the site, had parked his truck on the site and had left the back truck doors open.
As our client walked past the truck, a gust of wind again blew up, the truck door had not been properly secured and flung open striking our client resulting in him sustaining significant serious injuries. Our initial view was that it may fall under the definition of a motor vehicle accident as it involved a vehicle however in view of the recent Court of Appeal decision in the case referred to above this assisted us in determining that there was no collision, the vehicle was not being used (“in the process of driving”)at the time and the negligent action was in fact the failure of the driver or his off-sider to properly secure the latch of the door. A successful claim was made by commencement of proceedings in the District Court as a public liability claim against the owner of the vehicle against their insurer. The vehicle was owned by the business and therefore a claim was made against the Public Liability Insurer of that business. The claim was successfully commenced and finalised against the public liability insurer of that business.