Sections 5(1)(a)(i) & (ii) – driving of a motor vehicle or collision?

Suncorp Metway Insurance Limited v Sichter and Ors [2010] QSC 164

The plaintiff was standing adjacent to a wheelie bin on the footpath when the garbage collection truck moved towards the property and pulled up adjacent to the wheelie bins. The truck was stationary and the mechanical lifting mechanism was engaged to lift and empty the bin. The plaintiff was picked up with the garbage bin by the mechanical arm of the garbage truck and in the process  his right leg was crushed.

There was no dispute that the plaintiff’s injuries were caused “by, through or in connection with” a motor vehicle.

The issue on the application was whether the claim fell within the Motor Accident Insurance Act 1994 (Qld), and in particular sections 5(1)(a) (i) and (ii).

His Honour Daubney J at paragraph 40 came to the conclusion the injury was not a result of the driving of the motor vehicle under section 5(1)(a)(i) of the Act, even after applying the beneficial intent of the legislation:

  • Motor Accident Commission v ANI Corporation Ltd & Anor (1997)26 M.V.R. 57 — Followed and Applied
  • Transport Accident Commission v Treloar (1992)1 V.R. 447 — Distinguished
  • Insurance Commission of Western Australia v Container Handlers Pty Ltd [2004] HCA 24; (2004)218 CLR 89; 206 ALR 335; 78 ALJR 821 — Followed and Applied;
  • Portlock v Baulderston Hornibrook Engineering Pty Ltd [2005] NSWSC 775 — Followed and Applied

 

With respect to whether it was a collision with a motor vehicle, his Honour rejected that it as well.

[49] In natural and ordinary language, the present incident would not readily be described as a “collision”. What happened was that the plaintiff was picked up, or “collected” by the lifting mechanism of the truck. There was no “mutual motion”, to use the term of Hodgson JA, between the truck and the plaintiff.

[50] To classify this incident as a “collision” would go beyond the meaning of that word in s 5(1)(a)(ii):

  • Townsville Trade Waste Pty Ltd v Commercial Union Assurance Company of Australia Ltd [1999] QCA 386; [2000] 2 Qd R 682 — Followed and Applied
  • AMP General Insurance Ltd v Kull (2005) 44 MVR 339 — Followed and Applied

 

Appreciably, this is a factually driven case; however, it is a very useful decision for its summary of the relevant cases and application.

Brisbane Barrister – David Cormack

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