Morrisey, Neil --- "What Does It Mean to 'Drive' or 'Control' a Motor Vehicle?" [2021] PrecedentAULA 8; (2021) 162 Precedent 30

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WHAT DOES IT MEAN TO ‘DRIVE’ OR ‘CONTROL’ A MOTOR VEHICLE?

By Neil Morrissey

Dealing with the misadventures of drivers, and the vehicles they control, is cornerstone work in personal injury practice. It is settled law that a driver of a motor vehicle owes a duty of care to pay reasonable attention to all that is happening so as to prevent accidents and injury to others.^[1] Controlling the speed and direction of the vehicle is clearly encapsulated by this duty.^[2]

The job of the legal practitioner is not only to advise on the existence of fault on the part of a driver but also to assess, and potentially establish, whether a policy of insurance will respond to the circumstances of a particular case. This job is made more challenging in circumstances where the scope of the relevant policy is restricted. It is not uncommon for an injured plaintiff to have fault assessed and to receive a significant damages assessment with the end result being that the named defendant is impecunious and there is no insurer to pay the judgment.^[3]

This article assesses what it means to ‘drive’ or ‘control’ a motor vehicle for the purposes of negligence liability and the application of the compulsory third party (CTP) insurance policy, with a particular focus on the Western Australian experience.

THE WA CTP SCHEME

While establishing negligence will generally result in an enforceable remedy, an injured plaintiff is far better off obtaining a judgment that is enforceable against an insurer rather than an uninsured individual. Even if the uninsured defendant is a person of significant means, the practicalities of litigating against an individual who is picking up their own bill, and enforcing a judgment in the event they are successful, is undesirable.

In Western Australia, the CTP scheme is governed by the Motor Vehicle (Third Party Insurance) Act 1943 (WA) (the Act). Relevantly, s3 of the Act defines an ‘insured person’ as ‘the owner of a motor vehicle in respect of which a policy of insurance is in force under this Act, and the driver at the material time with or without the consent of the owner’. The term ‘motor vehicle’ is defined as ‘any vehicle propelled by gas, oil, electricity or any other motor power, not being animal power, required to be licensed’. Section 6 of the Act establishes that in order to comply with the Act, a policy of insurance must be issued by the Insurance Commission of Western Australia (ICWA), insuring the owner of the vehicle mentioned in the policy and any other person who drives the vehicle in respect of ‘liability for negligence which may be incurred by that owner or other person in respect of the death of or bodily injury to any person directly caused by, or by the driving of, the vehicle’. It follows that where an insurance policy applies pursuant to the Act, the injured party must establish that their losses were caused by the ‘driving of’ the vehicle.

Significantly, s7 of the Act deals with the liability of the ICWA. Section 7(1) states that any person who has obtained a judgment against an insured person in respect of negligence causing death or bodily injury, caused by the driving of a motor vehicle specified in a policy of insurance under the Act, may recover the judgment sum from the ICWA. Relevantly, s7(4) states that the ICWA cannot defend an action against it to recover a judgment sum by reason of any of the following:

(a) the policy was obtained by misstatement or non-disclosure;

(b) the insured person has committed any breach of any term, condition or warranty of a policy or any provision of the Act; or

(c) the insured person has failed to comply with any condition of the policy.

A breach of s7(4) potentially enables the ICWA to seek a recovery of the judgment sum from the insured person, however it does not relieve the ICWA of its obligation to pay the plaintiff’s judgment at first instance.

On one view, the application of the policy under the Act and the ICWA’s obligation to pay a plaintiff’s damages for negligent driving would seem straightforward and, in reality, it usually is. Certain particulars of negligence are extremely common, such as:

• failure to keep a proper lookout;

• failure to brake so as to avoid a collision with the plaintiff’s vehicle;

• failure to give way to the plaintiff’s vehicle;

• turning into the path of the plaintiff’s vehicle when it was not safe to do so; and

• driving at a speed that was excessive in all of the circumstances.

Practically speaking, if one of the preceding particulars was established against the insured driver, the policy under the Act would almost certainly respond. It is obvious that these types of failings relate to the driving of a motor vehicle.

DISCUSSION

In a jurisdiction where thousands of claims are brought each year, there will also be cases that are not so straightforward. For example, in a hypothetical situation where a motor vehicle catches fire while the car is travelling at the speed limit on a country road, and the occupants of the car sustain severe burns and musculoskeletal injuries from exiting the moving vehicle, can it be established that the driver drove the vehicle negligently so as to cause the CTP policy to respond? Alternatively, would the policy respond to a scenario where an elderly bus passenger trips because the driver did not lower the exit-to-kerb level after parking at the stop?

While each case is dependent on its facts, and in the burning car example it might be established that excessive speed, a failure to brake, or one of the other established categories of negligent driving were at play and were causative of the plaintiff’s injuries, the inquiry is not always so straightforward.

Injuries caused ‘as a consequence of driving’

We are given some guidance by the High Court in its reasons in Insurance Commission of Western Australia v Container Handlers Pty Limited^[4] (Container Handlers), where the issue on appeal was whether the bodily injuries suffered by the plaintiff, Mr Sutton, were ‘directly caused by, or by the driving of, [a] motor vehicle’ within the meaning of the standard form policy set out in the Schedule to the Act.^[5]

The circumstances of the case were that while transporting a truck on a low loader attached to a prime mover in outback Western Australia, Mr Sutton suffered a ‘brutal injury’ when, after having stopped to repair the low loader, a jack slipped and caused an axle of the low loader to fall, crushing his left hand against the chassis. The injury was the result of the negligence of Container Handlers (as the owner of the prime mover and low loader) through its employee, Mr Reibel. Mr Reibel was the driver of the prime mover that was hauling the low loader. Mr Sutton and Mr Reibel were carrying out the repair work after Mr Sutton noticed smoke and fumes coming off one of the left rear wheel hubs of the low loader. At the District Court trial, Mr Sutton gave evidence that there was grease everywhere and the wheels were out of shape. The High Court (per McHugh J, Gummow, Kirby, Callinan and Heydon JJ) allowed the appeal, unanimously finding that the policy issued pursuant to the Act did not respond to the circumstances of the case.

In his reasons, McHugh J observed that under the Act, bodily injury is not taken to be directly caused by the vehicle unless it is a ‘consequence of the driving of that vehicle or of the vehicle running out of control’.^[6] He found that Mr Sutton’s injury was not a consequence of the driving of the motor vehicle because it did not result from any feature of the driving of the vehicle, and there was no suggestion that the vehicle was running out of control at the time of the accident.

Justice McHugh observed that the formula ‘directly caused by, or by the driving of, [a] motor vehicle’ was introduced into the Act by the Motor Vehicle (Third Party Insurance) Amendment Act 1987 (WA) (Amendment Act). Before the Amendment Act, the statute used the phrase ‘caused by or arising out of the use of such [a] motor vehicle’.^[7] In Dickinson v Motor Vehicle Insurance Trust^[8] (Dickinson), the High Court considered these words and held that the injuries caused to a child left in a stationary vehicle, which subsequently caught fire as a result of another child playing with matches, arose out of the use of the vehicle.

The second reading speech in relation to the Amendment Bill, made by the then Deputy Premier, indicates that the Amendment Act was intended to overcome the decision in Dickinson and tighten the scope of the statutory policy.^[9] The Deputy Premier said that the Dickinson decision was generally considered to have ‘opened the flood gates’^[10] and that the full implications of Dickinson were largely still unknown. He stated that unless the Act was suitably amended, the scope of claims ultimately to be found as falling within the meaning of the words ‘in the use of [a] motor vehicle’ was potentially very wide.

Justice McHugh observed that the phrase ‘directly caused by, or by the driving of, [a] motor vehicle’ can be broken into two separate and distinct limbs. The statutory policy therefore applies where the death or bodily injury is:

1. Directly caused by the motor vehicle; or

2. Directly caused by the driving of the vehicle.

In Container Handlers, it was conceded that the driving of the motor vehicle did not cause the injury to Mr Sutton. Accordingly, the only question in the appeal was whether the injury was directly caused by the motor vehicle itself.

Justice McHugh observed that under the Act, it is necessary to establish a link between the driving of the vehicle and the death or bodily injury in question.^[11] His Honour observed that the amendments enacted by the Amendment Act were intended to reduce the scope of indemnity imported by the word ‘use’.^[12] This intention was executed by replacing the word ‘use’ with the word ‘driving’, due to ‘driving’ being a much narrower concept. Under earlier legislation dealing with the insurance of motor vehicles, particularly under CTP insurance policies, courts had interpreted the word ‘use’ to include activities with respect to a motor vehicle that would not ordinarily be regarded as acts of driving.^[13]

The Act does not define ‘driving’. Justice McHugh observed that the debate regarding

the Amendment Bill indicated that the word was to have its ordinary English meaning.^[14] The Australian Oxford Dictionary and The New Shorter Oxford English Dictionary relevantly define ‘drive’ as to ‘operate and direct the course of’ and to ‘operate and control the course of’ a vehicle respectively. Justice McHugh accordingly concluded that when the Act refers to a consequence of the ‘driving’ of the vehicle, it refers to a consequence of the actual operation and control of the direction and speed of the vehicle. It could not be said that a vehicle was being driven after the driver had stopped and got out of it.

The application of the term ‘drive’ is perhaps broadened by McHugh J’s finding that it is not necessary that the death or injury be directly caused by the driving of the vehicle and it is sufficient if the death or injury is ‘a consequence of the driving’.^[15] His Honour concluded that whichever limb of the indemnity is invoked, there must be a cause or link between the death or injury and some feature of the driving of the vehicle. Nothing in the evidence in the Container Handlers case suggested that there was any feature of the driving of the vehicle which caused Mr Sutton’s injury. The mere fact that Mr Sutton’s injury would not have occurred if the vehicle had not been driven from Port Hedland to Camp Tracey did not mean that, for the purposes of the Act, the injury to Mr Sutton was a consequence of the driving of the vehicle.

In circumstances where each case will present specific and distinct facts for consideration, and where the attribution of causation is a continuum, the findings of the High Court in Container Handlers – while informative on the more restrictive inquiry to be conducted pursuant to the amended version of the Act – does not provide a necessarily conclusive answer to lawyers who are trying to assess and determine whether the CTP policy will respond in a particular case. Adopting the earlier example of the car catching fire, it could be said, on one view, that the driving of the vehicle did not cause the fire or the injuries. On the other hand, it is strongly arguable that the driving of a vehicle in poor repair, the result of which is an injury to an occupant of the vehicle, is the product of driving for the purposes of the insurance policy.

Connecting the injuries to the driving

Further guidance was provided by the Victorian Supreme Court (per Moore J) in the recent decision of Zengin v Insurance Commission of Western Australia^[16] (Zengin). In that case the plaintiff, Mr Zengin, alleged that he had suffered a back injury when disembarking from a bus which transported him to his workplace from his accommodation. He alleged that the incident was caused by the negligence of the bus driver.

The Court in Zengin was required to determine as a preliminary issue whether the claimed injuries were directly caused by the driving of the bus. Justice Moore placed weight on McHugh J’s reasons in Container Handlers, in particular the conclusion that ‘as long as the death or injury was the effect of conduct that can be properly categorised as the “driving” of the vehicle, this statutory policy would encompass liability for that death or injury’.^[17] Justice Moore also placed weight on McHugh J’s finding that there was a need to find a cause or connection between the death or injury and some features of the driving of the vehicle. Justice Moore adopted McHugh J’s comment from Container Handlers that ‘it is not always easy to draw a line between an activity that can be described as “driving” and one that cannot be so described’ and that the distinction will necessarily depend on the particular facts of each case.^[18]

Justice Moore observed that in Zengin’s case, the engine of the bus was running and the driver remained in the driver’s seat when Mr Zengin alighted from the bus while it was stationary. The driver operated the controls to open the door to enable Mr Zengin and other passengers to disembark. Justice Moore observed that a driver of a passenger bus will be required to undertake particular activities relating to the control and management of the bus while in locomotion.^[19] The essential features of those activities in the case of a passenger bus include the driver’s use of the vehicle’s braking and steering system to bring the bus to a halt at specific locations (stops), and then the operation of a system for the opening and closing of doors to allow passengers to board and alight from the vehicle. His Honour concluded that these features form part of the essential activities relating to the control and management of a passenger bus while it is in locomotion.

Justice Moore held that Mr Zengin’s claimed injuries were directly caused by the driving of the bus for the purposes of liability of the ICWA under the Act. While the plaintiff’s case in Zengin ultimately failed for other reasons, Moore J’s application of the principles – outlined by McHugh J in Container Handlers as to what constitutes ‘driving’ for the purposes of the insurance policy established by the Act – is helpful to plaintiffs generally because it provides a more liberal approach to the enquiry and focuses on the overall operation of the vehicle.

SUMMARY

The parameters for establishing that injuries and losses have been caused by the ‘driving’ of a motor vehicle for the purposes of the Act are not – and perhaps cannot be – clearly defined. The statements of McHugh J in Container Handlers are informative and, insofar as they conclude that the only thing required is that the injury be ‘a consequence of the driving’, establish a broad net. Justice Moore’s reasons in Zengin are significant because they confirm that the definition of ‘driving’ adopted by McHugh J in Container Handlers – to ‘operate and direct the course of’ the vehicle – is adjunctive. In that case, it was held that to operate the bus was sufficient for the policy to respond. This assessment displaces the common submission that in order for the policy to respond, the injury must be causally related to the direction and speed of the vehicle.

Neil Morrissey is a barrister at Albert Wolff Chambers, Perth. PHONE [phone] EMAIL [e-mail].

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^[1] Manley v Alexander [2005] HCA 79, [11]–[12].

^[2] Ibid.

^[3] For example, in Wishart v Manna [2017] WADC 104 the plaintiff sustained significant injuries as a result of a motorcycle accident. District Court Judge Stone assessed Mr Wishart’s damages in the sum of $968,464. Because the motorcycle that had caused Mr Wishart’s injuries was a dirt bike not capable of being registered, the Motor Vehicle (Third Party Insurance) Act 1943 (WA) did not respond and the Insurance Commission of Western Australia was not liable to pay the judgment.

^[4] [2004] HCA 24.

^[5] Insurance Commission of Western Australia v Container Handlers Pty Limited [2004] HCA 24 (Container Handlers) (per McHugh J), [2].

^[6] Ibid, [3].

^[7] Ibid, [13].

^[8] [1987] HCA 49; (1987) 163 CLR 500.

^[9] Western Australia, Legislative Assembly, Parliamentary Debates (Hansard), 12 November 1987, 5759–60.

^[10] Ibid, 5759.

^[11] Container Handlers, above note 5, [42].

^[12] Ibid, [51].

^[13] See for example Dickinson v Motor Vehicle Insurance Trust [1987] HCA 49; (1987) 163 CLR 500, 505.

^[14] Ibid, [52].

^[15] Ibid, [64].

^[16] [2020] VSC 237 (Zengin).

^[17] Container Handlers, above note 5, [54].

^[18] Ibid, [52].

^[19] Zengin, above note 16, [57].