Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: TVH Australasia Pty Ltd v Chaseling [2012] NSWCA 149
• Hearing dates: 9 March 2012
• Decision date: 22 May 2012
• Before: Bathurst CJ at 1; Basten JA at 2; Whealy JA at 36

Decision

Appeal dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: TORT - negligence - risk of harm - whether defendant knew or ought reasonably to have known of the risk - whether defendant should have warned plaintiff as to the known risk; TORT - negligence - motor vehicle accident - whether fault of owner or driver of vehicle was "in the use or operation of the vehicle" - inexperienced forklift driver failed to spread the tines of the forklift - discussion of Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; 221 CLR 568; Zurich Australian Insurance Ltd v CSR Ltd [2001] NSWCA 261; 52 NSWLR 193; Nominal Defendant v GLG Australia Pty Ltd [2006] HCA 11; 228 CLR 529
• Legislation Cited: Motor Accidents Compensation Act 1999 (NSW), s 3; Workers Compensation Act 1987 (NSW), s 4; Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 250
• Cases Cited: Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; 221 CLR 568; Izzard v Dunbier Marine Products (NSW) Pty Ltd [2012] NSWCA 132; Nominal Defendant v GLG Australia Pty Ltd [2006] HCA 11; 228 CLR 529; Zurich Australian Insurance Ltd v CSR Ltd [2001] NSWCA 261; 52 NSWLR 193
• Category: Principal judgment
• Parties: TVH Australasia Pty Ltd (Appellant); Paul Chaseling (Respondent)
• Representation: Counsel: D J Hooke SC/P N Khandhar (Appellant); S G Campbell SC/M J Perry (Respondent); Solicitors: Hicksons Lawyers (Appellant); Taylor & Scott Lawyers (Respondent)
• File Number(s): CA 2011/156636

Decision under appeal

• Jurisdiction: 9101
• Citation: Chaseling v TVH Australasia Pty Ltd [2011] NSWDC 24
• Date of Decision: 2011-04-14 00:00:00
• Before: Levy DCJ
• File Number(s): DC 2009/336695

HEADNOTE

[This headnote is not to be read as part of the judgment]

The respondent, who was employed by the appellant, was injured on 29 June 2006 when a box fell from a forklift onto his leg while he was assisting in the unloading of a shipping container. There was evidence that the boxes, which rested on pallets, often shifted and became unstable while the containers were in transit. There was also evidence that the tines of the forklift used to lift the pallets had to be spread to counter the flexibility of the pallets. The driver of the forklift had not spread the tines and had not been told by the appellant of the risk that materialised.

The respondent brought proceedings in negligence against the appellant. At the time of the accident, the definition of "injury" in the Motor Accidents Compensation Act 1999 (NSW), s 3, stated:

"injury:

(a) means personal or bodily injury caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle, if, and only if, the injury is a result of and is caused during:

(i) the driving of the vehicle ..."

Levy DCJ gave judgment for the respondent in the sum of $712,275. He found that the injury fell within the terms of the Motor Accidents Compensation Act. He further found that there was no contributory negligence on the part of the respondent.

The appellant appealed to this Court, challenging the finding that the injury fell within the terms of the Motor Accidents Compensation Act, and challenging the primary judge's findings of negligence and causation.

The issues for determination on appeal were:

(i) whether the appellant was liable in negligence for the respondent's injury, and

(ii) whether the respondent's injury fell within the terms of the Motor Accidents Compensation Act.

The Court held (per Basten JA, Bathurst CJ and Whealy JA agreeing), dismissing the appeal:

In relation to (i)

1. There was evidence supporting the conclusion that the appellant was in fact aware of the risks associated with unloading the containers. The evidence supported a finding of negligence on a basis which was not pleaded with any particularity and which differed from that upheld by the trial judge. The evidence itself was not in dispute and the findings which may fairly be based upon it can hardly be challenged by the appellant, given that the evidence was adduced from its witness: [16]-[17]

2. The evidence supports the conclusion that the appellant knew, or at least should reasonably have been aware of the problem and should have notified the forklift driver accordingly. It should also have warned the plaintiff as to the known risk: [18]

In relation to (ii)

3. A distinction is to be drawn between a defect in a motor vehicle which directly causes injury and a defect which leads to the adoption of an alternative negligently devised scheme of work, not involving the defective mechanism: [24]

Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; 221 CLR 568; Zurich Australian Insurance Ltd v CSR Ltd [2001] NSWCA 261; 52 NSWLR 193; Izzard v Dunbier Marine Products (NSW) Pty Ltd [2012] NSWCA 132 referred to.

4. It does not follow that, because one can characterize a fault in terms which appear to be detached from and antecedent to the actual use or operation of the vehicle, the definition of "injury" is not engaged: [26]

5. An experienced forklift driver with knowledge of the risk which in fact materialised would have spread the tines and taken steps to secure the load. The negligence of the appellant was not in respect of a system of work ancillary to the use of and operation of forklift: it related directly to the manner in which the forklift was to be used and operated. It failed to advise the driver of the risk and how to avoid it materialising. The fact that the remedy may have lain at an earlier point in time did not mean that the proximate cause of the accident was not to be located in the manner of operating the vehicle: [30]

Nominal Defendant v GLG Australia Pty Ltd [2006] HCA 11; 228 CLR 529 distinguished.

Judgment

1 BATHURST CJ: I agree with Basten JA.

2 BASTEN JA: From May 2004 the respondent, Mr Chaseling, had been employed by the appellant as a spare parts interpreter, working at the appellant's warehouse at Wetherill Park. On 29 June 2006 he suffered an injury when a box weighing 219kgs fell off a forklift onto his leg. At the time, the forklift was involved in unloading a container and was reversing down a ramp. Mr Chaseling was walking beside it.

3 Mr Chaseling ("the plaintiff") brought proceedings in negligence against his employer. Levy DCJ upheld a claim in negligence against the appellant, giving judgment for the plaintiff in the sum of $712,275. He found that the injury fell within the terms of the Motor Accidents Compensation Act 1999 (NSW). He further found that there was no contributory negligence on the part of the plaintiff.

4 On 14 July 2011 the appellant filed a notice of appeal which challenged the finding that the injury fell within the terms of the Motor Accidents Compensation Act and the finding that there had been no contributory negligence. By an amended notice of appeal filed on 11 October 2011, the appellant maintained the grounds relating to the Motor Accidents Compensation Act, but abandoned the challenge with respect to contributory negligence. A third area of challenge was raised, namely four grounds relating to the findings of negligence and causation. No objection was taken to the raising of these additional grounds out of time.

Factual background

5 The appellant imported and sold spare parts for forklift vehicles from an associated company in Belgium. The imports were shipped in containers. On the date of the accident, 29 June 2006, the plaintiff was assisting another employee to unload parts contained in boxes on pallets from a container.

6 The unloading procedure involved opening one end of the container, driving a forklift up a small ramp and into the container, manoeuvring the tines on the forklift under a pallet, lifting the pallet and reversing the forklift back out of the container and down the ramp.

7 The driver on that afternoon was a Mr Linley Barnes. The plaintiff generally worked in the office. On the day in question, the operations manager asked him to help Mr Barnes unload the container. He had not assisted with the unloading before and had not driven a forklift. He was told that his part was to direct the forklift driver to guide the tines into the pallet: Tcpt, 21/02/11, pp 10-12. According to his observation of the length of the tines, he believed that there was a metal extension known as a "slipper" fixed to the tines. Once the tines were in place under the pallet, the driver lifted the pallet, which had two cardboard boxes on it, one on top of the other. When the pallet was on the ground, the bottom box was approximately chest high to the plaintiff: Tcpt, pp 22-23. As the forklift backed out of the container and down the ramp, with the plaintiff walking beside it, the top box, weighing 219kgs, fell off on the plaintiff's side, crushing his leg. The fall was caused either by the contents of the top box being heavier than those underneath and crushing the lower box, the contents of the top box not being uniformly distributed, or by a combination of both factors. The lower box was smaller and lighter, weighing approximately 70kgs.

Finding of negligence

8 After considering the circumstances in which the accident occurred, the trial judge described what happened in the following terms at [17]:

"In the incident in question, after the plaintiff had guided the tips of the extended forklift tynes into position for Mr Barnes, so that the load was engaged on the tips, Mr Barnes moved the forklift truck out of the container and [the plaintiff] stood on the ground on the right-hand side of the forklift, in a position about 2 feet away from the ramp. The forklift truck then reversed down the ramp with the load resting by force of gravity on the tips of its tynes rather than up against the apron guard adjacent to the mast of the forklift. The plaintiff stated that whilst this reversing manoeuvre was taking place, the load of cartons shifted on the tynes, and moved over to the right. In these events, the bottom carton collapsed, leading to the cartons toppling towards the plaintiff. In this way, both cartons fell off the tynes. In this way, the boxes fell upon him without prior warning, and crushed him."

9 Although this description was criticised, in substance it reflected the evidence. The appellant noted, correctly, that the plaintiff's description had an element of reconstruction, rather than observation: Tcpt, 21/02/11, pp 62-63. It also challenged the finding that the bottom carton collapsed before the top (heavier) carton shifted and toppled off the forklift. However, whether the toppling was caused by the movement of the heavier carton or the collapse of the lower smaller carton was unclear. In the event, neither of these points was significant.

10 When considering the issue of negligence, the trial judge asked whether the driver of the forklift was negligent. He held there were breaches of the duty of care owed by the appellant, some of which were direct negligence and some of which depended on vicarious liability based on the negligence of the driver. The judge identified seven breaches at [69]. The appellant submitted that some of the breaches were not pleaded, some were not supported by the evidence and some did not appear to have been relied on in the ultimate finding of negligence. It is convenient to restrict the inquiry to those matters which appear to have been relied on as causally linked with the injury. The judge made the following findings in that regard:

"71 From a causative perspective, of these confluent causes of the incident, the one that stands out as the pivotal causative event is the act of commencement and continuation of driving of the forklift in reverse, down a ramp at an angle to the ground, with its unsecured top heavy load perched towards the end of its tynes rather than at the more stable carrying position adjacent to the apron at the mast end of the tynes.

72 In my view, on a commonsense analysis, that action altered the inertial or gravitational force of the load, thus causing it to overbalance, collapse and fall onto the plaintiff. In my view, this was a fundamentally unsafe manoeuvre. The resultant injury to the plaintiff need not have occurred if commonsense was applied to beforehand secure the load, place it into a more stable position near the mast, to not drive the forklift until it was so secured, and even then, warn the plaintiff to stand clear."

11 In broad terms, these findings appear to reflect the following conclusion set out at [69]:

"Fourthly, [t]he manoeuvre carried out by Mr Barnes in reversing the forklift down the ramp, without first ensuring that the load was checked as being stable and secure on the tynes against the apron of the mast, was an inherently risk-laden exercise that exposed the plaintiff to foreseeable injury.... Sixthly, the plaintiff was not advised by his supervisor, or by some other responsible employee, that he should stand clear during the unloading manoeuvre."

12 Having made the findings set out above, the trial judge then referred to the expert opinions of a safety engineer and ergonomist: at [75]. However, that evidence does not seem to have supplied further grounds for the conclusion as to liability, rather than support for the causative factors identified above. That inference appears from the subsequent findings in relation to the issue next addressed by his Honour, namely whether the injury occurred during the use or operation of a motor vehicle, for the purposes of the Motor Accidents Compensation Act. In addressing that issue he stated at [81]:

"I have already stated my finding that the cause for the load falling onto the plaintiff from the tynes of the forklift was that the load had not been secured or stabilised before the forklift was put in reverse motion and driven. In my view, the decision to drive the forklift in those circumstances, and to continue to drive it down the ramp, necessarily involved fault on the part of the driver .... Given that the owner of the forklift was the employer of the driver, this necessarily means that the owner was vicariously liable for the driver's fault."

13 The appellant's challenge to the finding of negligence was based on the proposition that, although it was open to the judge to find that the load was unstable and insecure, based on the events which occurred when the load toppled off the forklift, there was nothing known to the appellant, its driver or the plaintiff prior to the accident, as a result of which they were aware, or ought reasonably to have been aware, of the risks involved. Accordingly, there had been no failure to take reasonable care for the safety of the plaintiff.

14 With one qualification, the reasons given by the trial judge provided no persuasive answer to that criticism. The qualification derives from the reports of Mr David Dubos, the safety engineer, and Mr Rick Rech, an occupational health and safety officer with the CFMEU who claimed "many years of training and assessing forklift operators as a WorkCover Inspector in the safe use of forklifts". Mr Rech stated that "[t]he driver should have been aware of the dangers associated with engaging and lifting unstable loads and loads which are multi stacked". Whether the load was known to be "unstable" before it collapsed was in dispute. However, Mr Dubos made the following statement in his report, admitted without objection (Tcpt, p 5):

"I understand that the pallet was made from plastic and was not as strong as plastic pallets being used generally in Australia. It has been stated that TVH Australasia was constantly having problems with the pallets breaking and cracking. It is apparent they were designed for storing products and not for transporting products. When loaded with heavy boxes, and the pallet was lifted using forklift truck, the pallet would bow and make the load unstable. All Australian branches of TVH had complained to TVH management generally about the pallets up to the time of the Plaintiff's accident, but no action was taken by TVH."

15 Although the last opinion was clearly hearsay, it found some support elsewhere in the evidence. The appellant called Mr Louis, who was the plaintiff's immediate superior at the time of the accident. Mr Louis held a forklift driver's licence. Counsel for the appellant led from him the evidence that Mr Barnes did not have a licence at the time of the accident: Tcpt, 22/02/11, p 76 (30). Of far greater importance was his evidence as to the experience of prior shipments of forklift parts, which the appellant imported from Belgium. The following evidence was given at Tcpt, pp 77-80:

"Q. Did you have personal experience before this incident with one of those similar containers of the goods within them moving?

A. Yes.

...

They just sat on pallets and with - coming across on the ships, the movement of the container, and they would just, like, integrate with each other. They'd just slide around on the pallets.

...

Q. You've mentioned pallets now, Mr Louis. Can you describe ... the pallets you're talking about?

...

A. They were a plastic structure.

...

Q. Did these plastic pallets have a wooden bottom like those CHEP pallets?

A. No.

Q. ... Was there some feature of the plastic pallets before this incident occurred that gave you cause for concern?

A. They break and we have seen them come across broken in the containers.

Q. Did they have any other tendency other than breaking?

A. Flexibility when you lift them.

...

Q. Did you notice that phenomenon about these pallets?

A. Yes, when I picked it up, it flexed. I put it back down and spread my tines further apart.

...

Q. Let me ask you about the load, Mr Louis. In the past when you dealt with these arrivals from Belgium, were the boxes secured together?

...

A. No.

Q. Were the boxes covered in any sort of material?

A. There may have been a plastic wrap, but it was not shrink wrap. [They] might have some form of wrapping but nine times out of ten it was broken due to the load moving.

...

Q. Did you have cause to complain to your employers about these pallets that you've told us about?

A. Several occasions.

Q. What was the nature of your complaint?

A. Cracking in transit, breaking, causing the parcel to fall off the loads and just a mess in the container when we get there.

Q. What was done about it?

A. Nothing."

16 This material constituted ample evidence, from a witness called by counsel for the appellant, supporting the conclusion that the appellant was in fact aware of the risks associated with unloading the containers. It is not in dispute that Mr Barnes did not have the experience as a forklift driver that Mr Louis had. Nor is it in dispute that the plaintiff was given no instruction as to the known risks of an activity in which it appears he had not participated in the past.

17 The evidence supported a finding of negligence on a basis which was not pleaded with any particularity and which differed from that upheld by the trial judge. The evidence itself was not in dispute and the findings which may fairly be based upon it can hardly be challenged by the appellant, given that the evidence was adduced from its witness.

18 No doubt because the issue as to the liability of the appellant in negligence only squarely arose in the course of argument in this Court, no objection was taken to the reliance by the plaintiff on the evidence of Mr Louis. Nor was any objection taken to the absence of a notice of contention in support of an appropriate finding. Rather, the appellant contended that Mr Louis' evidence related to problems which had arisen on prior occasions and was therefore irrelevant in the absence of any indication that a similar problem existed with respect to the container being unloaded at the time of the accident: CA Tcpt, 09/03/12, p 46 (35)-(45) and p 48 (45)-(48). However, the evidence set out above supports the conclusion that the appellant knew, or at least should reasonably have been aware of the problem and should have notified an inexperienced forklift driver as to what steps to take to avoid an accident arising while unloading possibly unstable packages which may have shifted in the container during the long sea voyage. It should have warned the plaintiff in similar terms as to the known risk.

19 It may seem odd that such evidence was led by the appellant. However, the appellant took at least two strategic decisions in running the case. First, although there was an argument as to contributory negligence at trial, that was abandoned on appeal. An assertion of contributory negligence on the part of the plaintiff ran the risk of inconsistency with the proposition that there was no reason for the forklift driver (or the plaintiff) to anticipate any danger in respect of the circumstances in which the accident arose.

20 The second strategic decision was to focus on the immediate or predominant cause of the accident. If that cause were not the use or operation of the forklift, but some prior failure in establishing a safe system of work, the appellant would avoid liability under the Motor Accidents Compensation Act. Because the plaintiff had not brought proceedings for work injury damages, he could not recover for the absence of a safe system of work. To explain the basis for this position it is necessary to turn to the second major limb in the appellant's case.

Whether injury caused by a motor accident

21 Ground 1 in the notice of appeal asserted that the trial judge erred in finding that the plaintiff had suffered an "injury" within the meaning of the Motor Accidents Compensation Act. Ground 2 asserted that the judge had erred in failing to find that the proceedings were a claim for "work injury damages" within the meaning of the Workers Compensation Acts. The theory underlying this limb of the appeal was based upon that dichotomy.

22 At the date of the accident, the Motor Accidents Compensation Act contained the following definition of "injury" in s 3:

"3 Definitions

In this Act:

...

injury:

(a) means personal or bodily injury caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle if, and only if, the injury is a result of and is caused during:

(i) the driving of the vehicle ...."

23 By contrast, the term "injury" as defined in the Workers Compensation Act 1987 (NSW) means "personal injury arising out of or in the course of employment": s 4(a). The term "work injury damages" is defined in the Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 250(1) to mean damages recoverable from an employer in respect of an injury to a worker caused by the negligence of the employer.

24 It is clear that there is no bright line to be drawn between the two legislative schemes. There will self-evidently be situations where a worker is injured in a motor accident in the course of his or her employment, where the fault lies with the employer, or a person for whom the employer is vicariously liable. Nevertheless, amendments to the predecessor of the Motor Accidents Compensation Act which commenced in 1995, were intended to limit the scope of that legislation in respect of work injuries. In particular, the amendments were designed to limit the extent to which loading and unloading operations would qualify as a motor accident. Thus, a distinction was thereafter to be drawn between a defect in a motor vehicle which directly causes injury and a defect which leads to the adoption of an alternative negligently devised scheme of work, not involving the defective mechanism: see Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; 221 CLR 568; Zurich Australian Insurance Ltd v CSR Ltd [2001] NSWCA 261; 52 NSWLR 193, recently discussed in Izzard v Dunbier Marine Products (NSW) Pty Ltd [2012] NSWCA 132 at [18]-[25] (in my judgment) and [126]-[129] (Macfarlan JA, Barrett JA agreeing). (Further amendments to the definition commenced shortly after the accident, on 1 October 2006, but are not applicable in this case: Schedule 5, cl 19.)

25 However, this was not a case involving negligent loading or unloading, but rather the driving of a forklift with an unsafe load. It did not engage the questions of causality raised by the second part of the definition. There was no doubt that the injury to the plaintiff was "a result of and [was] caused during ... the driving of the vehicle". Nevertheless, the appellant argued that, assuming there was fault on its part as owner of the vehicle, the fault was not "in the use or operation of the vehicle", but involved a failure, antecedent to the use or operation of the vehicle, to devise a safe system for that use or operation. Thus, if the accident were caused by the failure of the employer to give proper instruction to either Mr Barnes or the plaintiff with respect to the unloading operation and the risks involved, that was a fault which arose prior to any use or operation of the forklift.

26 As explained in the joint judgment of Gummow, Hayne and Heydon JJ in Allianz, in relation to the second part of the definition, "the emphatic and intensive phrase 'if, and only if' directs attention to notions of predominance and immediacy rather than to more removed circumstances": at [102]. Nevertheless, there is no bright line to be drawn between a cause which is predominant and immediate, rather than one which is "more removed". Similarly, it does not follow that, because one can characterize a fault in terms which appear to be detached from and antecedent to the actual use or operation of the vehicle, the definition is not engaged. For example, where an employer allows a heavy vehicle to be used in the course of the business and injury is caused by the driver losing control of the vehicle, it is appropriate to characterise the fault of the owner as permitting the use of the vehicle by a driver without proper training and thus a fault "in the use or operation of the vehicle". This conclusion is not undermined because the fault can also be characterized as the failure to provide training, which appears to be removed from the use or operation of the vehicle.

27 Where a negligently loaded vehicle loses part of its load on a highway, causing injury to the occupants of a following vehicle, the injury will fall within the scope of the Motor Accidents Compensation Act, not because the manner of driving was negligent, but because the negligent loading operation fell within the phrase "fault ... in the use or operation of the vehicle".

28 In Zurich Australian, the plaintiff was injured when lifting a ramp which was part of a trailer attached to a truck, without mechanical aids. Spigelman CJ addressed the submission as to why the injury fell outside the Motor Accidents Compensation Act, at [29]:

"The first submission was, essentially, one of characterisation. The Appellant submitted that the injury was not caused "in the use and operation of" the trailer. The injury was caused by an unsafe system of work or in the design of the trailer. Nothing in the language used, or the scope, purpose or operation of the Act, suggests that a dual characterisation of 'fault' is impermissible. The definition applies so long as the fault may be characterised in the way set out within it. It matters not that some other characterisation may also be appropriate."

29 The High Court did not overrule Zurich Australian in Allianz, but in Nominal Defendant v GLG Australia Pty Ltd [2006] HCA 11; 228 CLR 529 Gleeson CJ, Gummow, Hayne and Heydon JJ noted that the Court had not, in Allianz, adopted the characterisation of "fault" used by Spigelman CJ in Zurich Australia: GLG Australia at [28]. It did however accept that the question was "one of characterisation": at [31].

30 The appellant submitted in the present case that there was nothing negligent in the manner in which Mr Barnes operated the forklift. However, that was not so. An experienced forklift driver with knowledge of the risk which in fact materialised would, according to Mr Louis, have spread the tines and perhaps taken other steps to secure the load. The negligence of the appellant was not in respect of a system of work ancillary to the use and operation of the forklift: it related directly to the manner in which the forklift was to be used and operated. It failed to inform the driver of the risk and how to avoid it materialising. The fact that the remedy may have lain at an earlier point in time did not mean that the proximate cause of the accident was not to be located in the manner of operating the vehicle.

31 The appellant drew support from the judgment of the High Court in GLG Australia, which it described as "not far removed factually from the present case". On another view, the factual distinction between this case and GLG Australia leads to a different conclusion. The similarities involved the use of a forklift to pick up pallets and then reverse down a ramp in the course of unloading a container. The first point of distinction was that in GLG Australia the contents of the container were in boxes which were moved by workers onto a pallet at the front of the container. Secondly, the injury was not caused by a box falling off the forklift; it was caused by the vibrations created by the forklift dislodging a box from a stack within the container, which then fell on a worker. The trial judge in GLG Australia (Delaney DCJ) held, correctly in the judgment of the High Court, that the injury was not the result of a motor accident.

32 In adopting that approach the majority identified the correct characterisation in the following passages:

"27 It is true that the occupier was at fault. The fault, however, lay not in the use or operation of the forklift truck, namely, the driving of it. The occupier itself was not driving, nor was the driver it employed driving in a negligent way. The occupier's fault lay in designing and implementing a system of work that involved driving the vehicle in the manner in which it was driven, rather than devising and providing a reasonably safe system of unloading the containers which would not cause vibrations likely to destabilise the boxes being unloaded.

...

29 The flaw in the occupier's contention that the words before 'if, and only if' are to be broadly construed ... is that the contention gives no weight to the word 'in' in the expression 'in the use or operation of the vehicle'. As counsel for the occupier accepted, 'in the use' here means with respect to, as a consequence of, or by reason of the use of the forklift truck in the circumstances. That in turn points to the need to examine fault in the actual use or operation of the forklift truck at the particular time and place of the injury, and excludes an inquiry that goes more widely to instances of fault in the planning which led to its deployment and which may have taken place at points of time and place remote from those of the injury."

33 It may be that there is a level of uncertainty in adopting variations for the word "in", as suggested at [29]; for example, the phrase "with respect to" could have a potentially wider operation than "in". Further, the phrases "as a consequence of" and "by reason of" appear to have a causal element, although the fault cannot be caused by the use of the vehicle. However, the constrictive intention is clear. Thus, while the driving of the vehicle caused the injury in GLG Australia (at [33]), there was "no fault on the part of the owner or the driver of the forklift truck in its use or operation": at [31].

34 For reasons already explained, in the present case the fault lay in the manner of operating the forklift, namely the driving of a forklift with an unsafe load. That was a fault "in the use or operation of" the forklift. This challenge to the decision of the trial judge must be rejected.

Conclusion

35 The appellant having failed on both the major limbs of its appeal, the appeal must be dismissed with costs.

36 WHEALY JA: I agree with Basten JA.

**********

Decision last updated: 22 May 2012