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Written by Peter Carter

July 15, 2010

In May, the Supreme Court * ruled on whether a pedestrian injured in Queensland as a result of the operation of the mechanical arm of a refuse truck was entitled to CTP injury compensation.
The court had to decide whether the accident occurred, pursuant to section 5 of the Motor Accident Insurance Act (“MAIA”) as a result of:-

  • the driving of a motor vehicle; or
  • a collision or action is taken to avoid a collision, with the motor vehicle

“Driving”

The claimant had been standing next to the wheelie bin when the refuse truck approached and pulled up adjacent to him. The driver engaged the “grab” of the mechanic alarm and it caught the claimant’s right leg and crushed it against the truck.

The claimant relied upon Transport Accident Commission v Pedersen ** where a bus passenger was killed when disembarking after the bus stopped in an unsafe place. The court ruled in that case, that the inappropriate place to which the bus was driven was the as a consequence of the “driving of the vehicle” i.e. the “overall activity” and therefore the plaintiff succeeded.

His Honour examined a number of other authorities all of which were against the claimant’s contention:

  1. a passenger crushed when a jack under a stationary low loader slipped: (Insurance Commission of Western Australia v Container Handlers P/L (2004) 218 CLR 89;
  2. a bystander injured when a stationary mobile crane tipped over: (Portlock v Baulderstone Hornibrook P/L [ 2005] NSWSC 775;
  3. a worker falling from the back of a stationary semi-trailer as a result of the operation of a forklift loading goods on to the truck: (Motor Accident Commission v ANI Corp Ltd (1997) 26 MVR 57;
  4. a passenger injured when boarding a bus and falling as a result of losing her footing on the step: Transport Accident Commission v Treloar [1992] 1 VR 447 at 453

The court concluded there was a clear distinction between actual driving of a vehicle “in the sense of locomotion” and the use of a vehicle for a different purpose while stationary. His Honour quoted with approval the leading judgment in the forklift case (ANI Corp) which turned to a great extent on whether or not the forklift’s wheels were actually turning at the critical time. Because the forklift operator had merely been lowering and raising the forklift tines at the time the accident, the claimant in that case failed to establish that the injuries were “a consequence of the driving” of the forklift.

His Honour concluded that in the instant case the injury was caused by the mechanical lifting arm, not the driving of the truck. It was not “caused by the speed with which the truck was driven or the place to which it was driven”.

The claimant failed on this point but the judgment still leaves open claims for CTP injury compensation in connection with stationary vehicles if they are caused as a result of the “place to which [a vehicle] is driven”.

It should be remembered that section 5 has no temporal requirement – it merely refers to “the driving of the motor vehicle” not “while a motor vehicle is being driven”.

“Collision”

Was the injury as a result of “a collision”?

His Honour was of the view that there is “no requirement for the vehicle to be moving at the time” for a collision to have occurred. However, on the ordinary meaning of the term, it could not be said that there had been a collision between the claimant and the refuse truck in this case.

The situation may have been different had there been “mutual motion” between the truck and the claimant i.e. had the claimant been walking when the accident occurred.

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*   Suncorp Metway v Sichter (2010 QSC 21/05/2010)

** Transport Accident Commission v Pedersen [1992] 1 VR 447

Categories: Personal Injury , Litigation & Law Practice

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