Australia: Driving A Motor Vehicle Not Enough For Motor Accident Legislation

The appellant (in the WA Court of Appeal proceedings), John Frederick Maitland-Smith (appellant), appealed the decision of the District Court of Western Australia, which dismissed his claims for damages for personal injuries he sustained whilst driving a bus in the course of his employment with Path Transit Pty Ltd (Path) - the First Respondent in the Court of Appeal proceedings. The appellant conceded in the District Court proceedings that his claim for damages would be precluded from the Workers Compensation and Injury Management Act 1981 (WA), unless it was a claim to which the Motor Vehicle (Third Party Insurance) Act 1943 (WA) (Motor Vehicle Act) applied. The District Court held that it did not. Path also filed a cross-appeal with respect to the finding of negligence made against it by the trial judge, notwithstanding no damages were awarded to the appellant.

By way of background, the appellant alleged that he suffered personal injury as a result of the spontaneous collapse of the driver's seat upon which he was sitting on three separate occasions during the course of his employment. The trial judge, however, was unable to identify the cause of the chair's collapse. There was no evidence that the problem had occurred prior to the first of the three incidents in which the appellant was involved. Since Path had a system in place for servicing its chairs and the appellant did not establish that the system that was in place was inadequate, the appellant did not prove that Path was in breach of its duty of care to him in respect of the first incident.

Following the first incident, according to the trial judge, Path had every opportunity to inspect other seats that seemed defective and to rectify same to make them suitable for their purpose. This would have come at minimal expense. The fact that no effort was made by Path to inspect other buses during the servicing period, despite the incident described, was in the trial judge's opinion a breach of duty by Path. However, the claim was dismissed as it was also found that the Motor Vehicle Act did not apply to the subject claim, the basis of which is discussed below. Path appealed against the finding of negligence.

The Court of Appeal allowed Path's Cross Appeal and dismissed the appellant's contention in relation to same. The reason for this was that the Court of Appeal found the trial judge's logic to be merely speculative and unsupported by the evidence. Specifically, the trial judge found that after the first incident in which the appellant was involved, Path should have inspected not only the subject seat involved, but all seats in all buses under Path's control. However, no evidence that any defect in the seat on the first bus was identified and further, there was no evidence or finding that justified such an inspection. It was further considered that there was also no evidence to indicate that such an inspection, if undertaken, would have prevented the incident in any event. Accordingly, the findings of negligence against Path were unfounded and the appeal was allowed.

With respect to the finding of whether the Motor Vehicle Act applied, the Court of Appeal referred to the High Court decision in Insurance Commission of Western Australia v Container Handlers Pty Limited [2004]. In this case, the Court construed the statutory scheme in such a way that the injury sustained must have been caused directly by the driving of the vehicle. In the present case, the trial judge concluded that because he was unable to identify the cause of the seat collapse, it followed that he was unable to conclude that it was caused by the motion of the bus. This approach, in the opinion of the Court of Appeal, was consistent with the law espoused and reinforced by Handler. In particular, that case noted the defect in the motor vehicle must be caused by "some aspect of the management and direction of the vehicle" and not merely caused by the motion of the vehicle. A finding consistent with the latter would be insufficient to establish an indemnity in line with Handler, as the fact that the bus was merely in motion at the time of the seat collapse only established a temporal connection between the motion of the bus and the collapse of the seat, not a causal connection. The lack of evidence of the causal connection led to mere speculation.

That the appellant did not adduce any technical or expert evidence relating to the seat collapses or to contradict the evidence of Path's witnesses concerning the properties of the driver's chair and the fact that it was unable to collapse, meant that the trial judge's acceptance of the appellant's evidence was in error and any finding of negligence, given the lack of technical evidence adduced by the appellant to contradict the evidence of Path was merely speculative and unreasonable. However, given the corroborative documentary evidence and the appellant's contemporaneous complaints, coupled with the trial judge's acceptance of the appellant's evidence, it was open to the trial judge to find that the seat collapsed as alleged by the appellant. Accordingly, Path's cross appeal on this ground failed.

The trial judge's findings that the cause of the failure of the seat was identified after inspection and that action was taken to prevent the collapse in future were set aside. There was no documentary evidence suggesting any such inspection or recording of any defects occurred. A number of other findings made by the trial judge were not open for consideration on appeal as they were consequential on the findings of inspection which were set aside.

The Court of Appeal held that Path's failure to inspect and investigate the causes of the subject incidents to a large degree demonstrated breach of duty to the appellant. However, such breaches were neither pleaded, nor litigated at trial and the appellant did not seek to uphold the findings made by the trial judge concerning Path's negligence. Accordingly, since the findings of inspection and rectification of the alleged defects were essential to the finding of breach of duty, the finding of breach ought also to be set aside and the appellant's action against Path failed.

Interesting comments were proffered by the Court of Appeal concerning the legitimacy of the current framework and the narrow scope of the current motor vehicle legislation. The fact that the driving of the vehicle must be the direct cause of the injury does not seem to account for defects beyond the driver's control, such as defective brakes or pot holes in the road surface. In summary, even though the seat in the subject case collapsed whilst the bus was in motion, it could not be established that the actual collapse was caused by the driving of the bus.

Maitland-Smith v Path Transit Pty Ltd (2009) 52 MVR 185; [2009] WASCA 46 (4 March 2009)

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.