JA & BM Bowden & Sons Pty Ltd v Doughty -  NSWCA 82
Giles JA, Handley AJA and Sackville AJA
- Damages will be assessed under Chapter 5 of the Motor Accidents Compensation Act 1999 where the injury was caused by the fault of the owner or driver in the use or operation of the vehicle.
- An injury involving a motor vehicle will not be characterised as having been caused by fault in the use or operation of the vehicle where the predominant cause of the injury was the negligent instruction of an employer.
The NSW Court of Appeal handed down its decision in JA & BM Bowden & Son Pty Ltd v Doughty on 20 April 2009.
The principal issue in the Appeal was whether damages should be assessed in accordance with Chapter 5 of the Motor Accidents Compensation Act 1999 or under Division 3 of the Workers Compensation Act 1987.
The appellant employed the respondent as an orchard hand. The respondent was required to drive a tractor between two orchards operated by the appellant. The tractor in question was equipped with a roll bar which could be raised and lowered. The appellant instructed the respondent that the roll bar should be lowered at all times. This was important because a raised roll bar had the propensity to knock off too muck fruit from the trees.
The respondent was injured when the right front wheel of the tractor lifted, whilst the respondent made a right hand turn to travel up a hill. The tractor rolled over. The respondent would have escaped injury had the roll bar been raised.
Section 122(1) of the Motor Accidents Compensation Act 1999 provides:
"This Chapter [Chapter 5] applies to and in respect of an award of damages which relates to 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."
The trial judge held that the respondent's injury was sustained in "in the use of operation" of the tractor and, therefore, assessed damages under the Motor Accidents Compensation Act 1999.
Court of Appeal
The Court of Appeal was divided as to whether the respondent's injury was caused by the fault of the appellant "in the use or operation of" the tractor.
Justice Giles and Handley AJA held that the respondent's injury was not one to which the Motor Accidents Compensation Act 1999 applied. Justice Sackville dissented.
At paragraphs 32 and 33, Giles JA explained that the respondent's injury was not sustained in the use or operation of the tractor, for the purposes of s 122(1) of the Motor Accidents Compensation Act 1999, because the decision to lower the roll bar was made in the commercial interests of the employer and was not directly related to the manner in which the tractor was driven:
"32 The actual use or operation of the tractor at the time and place of the respondent's injury was driving it. It was being driven with the rollbar lowered, but that was not an element in the way it was being driven (eg its speed, on a slope turning uphill). Nor was it anything to do with how it came to roll over. The tractor was just as stable or unstable on a slope with the rollbar lowered - it was not like defective brakes causing the tractor to run out of control and roll over.
"33 The instruction to drive within the properties with the rollbar lowered was given when the respondent began his employment with the appellant, and by the appellant as his employer. That was the essential fault of the appellant, a fault in implementing a system of work which in that respect it put in place for the commercial consideration that fruit should not be knocked from the trees. The fault continued as the system of work was continued, but that did not affect its nature. In characterisation for the purposes of "in the use or operation of the vehicle", the fault was distant from the occasion of driving the tractor, and was a breach of the appellant's duty of care owed to the respondent as its employee through negligently instructing how he was to carry out his duties. In my opinion, it was not fault in the use or operation of the tractor within s 122(1) of the Act and para (a) of the definition of "injury"."
At paragraph 43, Handley AJA agreed with Giles JA that the injury was not sustained in the use of the tractor because the decision to lower the roll bar was made by the owner – albeit in the capacity of employer – "remote in time and place from the accident."
As indicated, Sackville AJA dissented and found that the trial judge was correct to characterize the incident as a motor accident. His Honour explained his decision, at paragraph 60, as follows:
"60 In my opinion, the appellant's injury can and should be characterised as having been caused by the fault of the owner in the use or operation of the vehicle. The appellant's fault was with respect to the use of the tractor at the particular time and place of the injury since the instruction not to use the roll bar remained in force at the time the respondent was injured. The instruction exposed the respondent, as the operator of the tractor, to a greater risk of injury in the course of the ordinary use and operation of the tractor. While the instruction did not cause the accident, it caused the operator to suffer serious injuries in consequence of his use and operation of the tractor."
Ultimately, the majority held that the trial judge erred in applying Chapter 5 of the Motor Accidents Compensation Act 1999 and allowed the employer's appeal.
The decision in Doughty re-affirms the difficulty the courts have in properly characterising injuries which arise from a dangerous system of work which happens to involve a motor vehicle.
Whilst the trial judge and Sackville AJA characterised the accident as a motor accident, Giles JA and Handley AJA were satisfied that the predominant cause of the accident was an unsafe system imposed by an employer.
In my view, the reasons given by Giles JA were compelling. The appellant, in its capacity as owner of the vehicle, had no preference for whether the roll bar was raised or lowered. However, the appellant, in its capacity of employer, had a clear commercial interest in leaving the roll bar lowered in order to avoid fruit being knocked from the trees.
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