Australia: Trial Judge's Finding of "motor accident" Upheld on Appeal

Ron Lai Plastic Pty Limited v Cui Ngo [2010]
Last Updated: 16 July 2010
Article by Nathan Morehead

Judgment date: 28 June 2010

New South Wales Court of Appeal1

In Brief

  • When considering whether the factual circumstances of a case satisfy the definition of a "motor accident" within the meaning of s 3 of the Motor Accidents Compensation Act 1999 (MAC Act), a trial judge is permitted to draw inferences from the evidence which is given or, as in this case, not given.
  • If the factual circumstances of a case involve the unloading of freight via a forklift and the evidence favours a finding that the negligent use or operation of the forklift caused injury, it is likely the provisions of s 3 of the MAC Act will be found to be satisfied.


Mr Cui Ngo was employed by Ron Lai Plastic Co Pty Limited as a delivery driver. On 9 February 2006 he collected a plastic extrusion machine, which was approximately 1.5 metres high, 1.5 metres round and 400 to 500kg in weight, in his truck. The machine was situated on a pallet and loaded onto his truck by a forklift. The pallet was secured on his truck with a rope.

On his return to his employer's premises, Mr Ngo observed that the pallet on which the machine was resting was damaged. He informed Mr Lac, a forklift driver, it would be dangerous to lift the machine with the forklift and they entered into a discussion as to how to safely unload it. What occurred next was the subject of dispute and, in turn, dictated whether the factual circumstances of the incident were properly characterised as a "motor accident" within the meaning of s 3 of the MAC Act or whether the cause of action was governed by the provisions of the Workers Compensation Act 1987.

Mr Ngo gave evidence that he was standing in close proximity to the machine on the ground with Mr Lac seated on the forklift. When Mr Ngo went to untie the rope which secured the pallet onto the truck, Mr Lac, without warning, placed the tines of the forklift through the pallet and pulled back. Mr Ngo, realising the machine could not be lifted, requested that Mr Lac stop the forklift, however, he failed to do so. Mr Ngo attempted to escape as the machine began to fall but was unsuccessful. The machine landed on his leg, causing him to sustain injury.

This version of events was vigorously challenged by Mr Ngo's employer, who relied on the evidence of Mr Jones, an employed printer at the time of the accident, but not Mr Lac, who was not called. It was suggested to Mr Ngo that, after being informed that the pallet was broken, Mr Lac lifted the machine slightly so that Mr Ngo could remove the broken pallet and, at the same time, he and Mr Lac removed a piece of board which was situated between the pallet and the machine. An unbroken pallet was then placed onto the truck prior to Mr Lac returning to his forklift and lowering the machine onto the fresh pallet. Once Mr Lac had lowered the machine onto the fresh pallet it was unstable and Mr Ngo attempted to hold it whilst standing in the back of the truck. Mr Ngo and the machine fell out of the side door of the truck almost simultaneously, with the machine landing on his leg.

Mr Ngo denied this version of events, stating that he had, prior to the incident, stepped onto the back of his truck in an attempt to undo the rope but was unable to hold the machine and discontinued his efforts, before returning to the ground. Further, Mr Ngo denied Mr Lac had lowered the machine onto the floor of the truck and that the forklift was not in contact with it.

District Court of New South Wales – Christie ADCJ

Judge Christie observed that it was not entirely clear whether Mr Ngo fell or jumped out of the truck prior to being struck by the machine. His Honour went on to state that it was insignificant, except that he would have some reservations about the evidence given by Mr Ngo that he was not actually on the truck and "fiddling about in some way attempting to assist the forklift driver in removing the machine".

The judgment focused on the fact the defence was based on the contention there was no evidence the forklift was the instigator of the incident in the sense that its use caused the machine to fall out of the truck onto Mr Ngo. His Honour found that proposition impossible to accept, advancing the following reasoning:

" 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 machine with a 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 of 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. "

In entering a verdict for Mr Ngo and finding the circumstances of the incident were properly characterised as a "motor accident" within the meaning of the MAC Act, His Honour remarked:

" 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). "

Court of Appeal

There was no dispute that if the machine was dislodged as a result of the forklift coming into contact with it, that this was a "motor accident" within the meaning of s 3 of the MAC Act and that this legislation governed the cause of action.

The appellant submitted that the inferences drawn by Judge Christie in relation to how the accident occurred were not supported by the evidence of Mr Ngo or Mr Jones and, therefore, he erred in making judgment in favour of Mr Ngo. The evidence of Mr Jones was relied upon to demonstrate that the machine was on the floor of the truck and Mr Ngo was moving it when the accident occurred.

Mr Ngo submitted that the finding by Judge Christie that the machine fell out of the truck as a result of the manipulation of the dye by the forklift was supported by his evidence.

Justice Beazley delivered the leading judgment and dismissed the appeal. The qualified acceptance of the evidence given by Mr Ngo and the reference by Judge Christie to the inescapable inference that the forklift was in operation and moved or touched by the machine, thus dislodging it, was found by Her Honour to be supported by two pieces of evidence:

" 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 pulled 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,'.

In cross-examination, in refuting the proposition that he was holding on to 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. "

Her Honour found these passages describe how the accident occurred and are direct evidence that the forklift was in contact with the machine at the time it commenced its fall. When addressing the contention by the appellant that the evidence given by Mr Ngo was not generally supported by the evidence given by Mr Jones, it was noted that, whilst Judge Christie did not deal with it in any detail, it was not an appealable error, for two reasons:

" First, there is no ground of appeal that raises the question. 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. "

Justice Beazley went on to remark that the evidence that Mr Ngo was attempting to "hang on to the machine" was improbable. This was due to the weight of the machine and the favourable credit finding made by Judge Christie in respect of the evidence given by Mr Ngo, who was adamant he did not move the machine and it fell whilst being moved by the forklift.

Justice Hodgson agreed with the reasons of Justice Beazley and went on to state that, for the accident to fall within the provisions of the MAC Act, it needed to be established that the injury Mr Ngo sustained was caused by the fault of the driver of the forklift in the use of operation of the vehicle and that it was the result of and caused during the driving of the vehicle.

As far as the former is concerned, His Honour noted that Mr Jones did not, and could not, contradict the evidence given by Mr Ngo that the machine fell as a result of contact with and movement of the forklift. Further, in circumstances where Mr Lac was not called and no explanation was proffered, it was open to Judge Christie to accept that the machine fell in the manner described by Mr Ngo.

As far as the latter is concerned, it was accepted by Mr Ngo that, irrespective of whether the movement of the forklift was due to the raising or lowering of the tines or movement of the whole forklift truck, either version supports the finding that the operation of the forklift by Mr Lac would amount to driving the vehicle. Accordingly, both requirements were satisfied.


This case is a timely reminder that the evidence of witnesses should be vigorously tested prior to hearing and compared with the version of events supplied by an injured claimant. This is particularly so in circumstances where the driver of the vehicle which is alleged to be at fault is not called to give evidence and the witness acknowledges he/she did not see or know all that occurred in the moments leading up to the injury.

Further, in factual circumstances involving the unloading of freight via a forklift, the question remains whether the injury occurred as a result of the fault of the driver during the use or operation of the vehicle, as distinct from the system of work, in order to attract damages under the MAC Act.

1 Beazley JA; Hodgson JA and Tobias JA

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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