Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Bayon v Bayon [2014] NSWCA 434
• Hearing dates: 20 November 2014
• Decision date: 18 December 2014
• Before: Basten JA at [1]; Meagher JA at [24]; Adamson J at [25]

Decision

[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: TORTS - appellant accidentally shot when firearm discharged bullet in the course of a hunting expedition - shooter in rear tray of utility - appellant and driver in cabin - prey identified in front of vehicle - whether driver at fault - whether statutory third party policy responded - s 3A Motor Accidents Compensation Act 1999
• Legislation Cited: Civil Liability Act 2002 (NSW), ss 3B, 5B, 5C, 5D, 5E; Motor Accidents Act 1988 (NSW); Motor Accidents Amendment Act 1995; Motor Accidents Compensation Act 1999 (NSW), ss 3, 3A, 3B; Motor Accidents Compensation Amendment Act 2010 (NSW), Clause 38, Sch 1
• Cases Cited: Australian Casualty Co Ltd v Federico [1986] HCA 32; 160 CLR 513; Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; 221 CLR 568; Barnes v Hay (1988) 12 NSWLR 337; March v Stramare (E&MH) Pty Ltd [1991] HCA 12; 171 CLR 506; GLG Australia Pty Ltd v The Nominal Defendant [2004] NSWCA 166; Lasermax Engineering Pty Ltd v QBE Insurance (Australia) Ltd [2005] NSWCA 66; 13 ANZ Ins Cas ¶61-643; Leach v The Nominal Defendant (QBE Insurance Australia) Ltd [2014] NSWCA 257; 67 MVR 494; Nominal Defendant v GLG Australia Pty Ltd [2006] HCA 11; 228 CLR 529; Nominal Defendant v Hawkins [2011] NSWCA 93; 58 MVR 362; Sahade v The Owners - Strata Plan 62022 [2014] NSWCA 208; Zotti v Australian Associated Motor Insurers Limited [2009] NSWCA 323
• Category: Principal judgment
• Parties: Favian Bayon (Appellant); Juan Bayon (First Respondent); Amy Catherine Mammone (Second Respondent); GIO General Limited (Third Respondent)
• Representation: Counsel: R Sheldon SC/P Khandhar (Appellant); P Deakin QC/N Compton (Third Respondent); Solicitors:
• File Number(s): 2013/356119
• Publication restriction: Nil

Decision under appeal

• Date of Decision: 2013-10-29 00:00:00
• Before: Curtis DCJ
• File Number(s): 2012/245442

Judgment

1 BASTEN JA: As more fully explained by Adamson J, this matter involves a claim for damages by a person shot in the head by a friend operating a rifle during night time spotlighting from the back of a vehicle. The driver of the vehicle was the plaintiff's father: the claim was run on the basis that the respondent, as the third party compulsory insurer of the vehicle, would be liable for any damages to which the plaintiff was entitled.

2 The plaintiff's claim was dismissed by the trial judge, Curtis DCJ, on the basis that the injury was not caused by any fault of the driver to which the statutory policy established by s 10 of the Motor Accidents Compensation Act 1999 (NSW) responded. As senior counsel for the insurer put it in colloquial terms, the injury was a result of a shooting accident, not a motor vehicle accident.

3 While I agree with Adamson J that the appeal must be dismissed, some observations may be in order with respect to the legal basis upon which the case proceeded, both at trial and in this Court. On one view, the parties took on a somewhat artificial, if not idiosyncratic, view of the law. It is generally inappropriate for this Court to decide cases on the basis of legal principles which do not accord with its view of the law: cf Sahade v The Owners - Strata Plan 62022 [2014] NSWCA 208 at [8]-[9] and [93]-[94].

4 The liability of the insurer depended upon an application of s 10 of the Motor Accidents Compensation Act. That provision relevantly reads:

10 Third-party policies

(1) A third-party policy under this Act is a policy that is in the following terms:

Third-party Policy

The insurer insures the owner of the motor vehicle and any other person who at any time drives the vehicle (whether or not with the consent of the owner) against liability in respect of the death of or injury to a person caused by the fault of the owner or driver of the vehicle:

(a) if the motor vehicle is not one to which paragraph (b) applies - in the use or operation of the vehicle in any part of the Commonwealth (whether or not on a road), or

...

In this policy, words and expressions have the same meanings as in the Motor Accidents Compensation Act 1999.

(2) ....

5 Relevantly for present purposes, there are two words or expressions used in the "policy" which have defined meanings under the Act, as defined in s 3. They are:

3 Definitions

In this Act:

...

fault means negligence or any other tort.

...

injury means personal or bodily injury ...

6 It was not in dispute that the statutory policy was subject to the general restrictions imposed by s 3A, which (without reference to the notes contained within the section) presently reads as follows:

3A General restrictions on application of Act

(1) This Act (including any third-party policy under this Act) applies only in respect of the death of or injury to a person that is caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle and only if the death or injury is a result of and is caused (whether or not as a result of a defect in the vehicle) during:

(a) the driving of the vehicle, or

(b) a collision, or action taken to avoid a collision, with the vehicle, or

(c) the vehicle's running out of control, or

(d) a dangerous situation caused by the driving of the vehicle, a collision or action taken to avoid a collision with the vehicle, or the vehicle's running out of control.

...

(2) This Act (including any third-party policy under this Act) does not apply in respect of an injury that arises gradually from a series of incidents.

7 Subparagraph (1)(d) was not part of the section when the accident in which the plaintiff was injured occurred, on the evening of 8 August 2009. That paragraph was introduced by the Motor Accidents Compensation Amendment Act 2010 (NSW), Sch 1[3]. A similar amendment was made to the definition of "motor accident" in s 3, although that term does not appear in s 3A or s 10. (The term is used in the note to s 3A, and also in s 3B which deals with the application of Chs 3-6 in respect of death or injury resulting from the use or operation of a motor vehicle.) The 2010 amendments to ss 3 and 3A are said to "extend to an incident or accident that occurred on or after 1 October 2006, but not so as to affect any compromise or settlement of a claim, or any decision made by a court, before the date of assent to the amending Act": Sch 5, Pt 9, cl 38. It was assumed (and may be accepted for present purposes) that the amendment to s 3A retrospectively broadened the scope of the Act and any third party policy in existence at the time of this accident, namely 8 August 2009.

8 A critical element in establishing liability on the part of the insurer was establishing "fault" on the part of the owner or driver of the motor vehicle. The pleading, relevantly for present purposes, alleged negligence on the part of the owner and driver. Accordingly, to establish the liability of the insurer the plaintiff had to establish that his injury was caused by the negligence of the owner and driver of the vehicle. (There are additional constraints, namely that the fault occur "in the use or operation of the vehicle" and that the injury be "a result of and ... caused ... during ... the driving of the vehicle": consideration of the second element may be deferred, the third element raises a temporal limitation.) In dealing with a claim for damages for harm resulting from negligence, including with respect to motor accidents, Pt 1A, Divs 1-4 and 8 of the Civil Liability Act 2002 (NSW) apply: s 3B(2) and s 5A. Assuming that there was a duty of care owed by the driver to another person in the vehicle which extended to the use of the firearm, any question of breach must therefore be determined in accordance with s 5B (in Div 2) and questions of causation by reference to ss 5D and 5E (Div 3) of the Civil Liability Act.

9 The trial judge dealt with the case on the basis that the injury was not "a result of" either (a) - the driving of the vehicle - or (d) - a dangerous situation caused by the driving of the vehicle- being the only potentially relevant paragraphs in s 3A(1). He therefore deemed it unnecessary to identify the fault of the owner or driver. It was sufficient to conclude that the only fault on the part of the driver pleaded by the plaintiff "that may relate to the driving of the insured vehicle is the act of positioning the cab of the vehicle between the shooters and the rabbits": at [41] (emphasis in original). The judge then identified the relevant standard to be applied by a number of steps.

10 First, he rejected the "but for" test, preferring a "functional evaluation of the relationship and the purposes and policy of the relevant part of the law" in accordance with the reasons of Mahoney JA in Barnes v Hay (1988) 12 NSWLR 337 at 353, referred to by the trial judge at [44]. (That case involved a claim for damages against a solicitor with respect to advice given on the renewal of a lease.)

11 The second step in the reasoning referred to a passage in the joint reasons of Gummow, Hayne and Heydon JJ in Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; 221 CLR 568 at [102] where the Court was considering the definition of "injury" inserted in the Motor Accidents Act 1988 (NSW) (the predecessor to the present Act) by the Motor Accidents Amendment Act 1995 (NSW) ("the 1995 Act"). As amended, s 3(1) read:

"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 or ..."

12 Noting that the purpose of the 1995 Act was to restrict the scope of compulsory third party insurance legislation, the joint reasons stated at [102]:

"The use in the definition of the emphatic and intensive phrase 'if, and only if' directs attention to notions of predominance and immediacy rather than to more removed circumstances. The definition of 'injury' looks, for the CTP insurance system, to notions of proximate cause found in insurance law. That construction is consistent with the subject, scope and purpose of the 1995 Act."

13 The reason to look to insurance law to understand the statutory provision was explained in a footnote by reference to Australian Casualty Co Ltd v Federico [1986] HCA 32; 160 CLR 513 at 534-535 and March v Stramare (E&MH) Pty Ltd [1991] HCA 12; 171 CLR 506 at 511. Australian Casualty was a case involving a claim under a sickness and accident policy which was not confined to claims in tort. In considering the scope of an entitlement based on an injury "caused by an accident" Brennan J stated that "[t]he rule in applying contracts of insurance is that the proximate cause of loss is alone regarded, ... [b]ut where an accident is a remote cause of a loss, the loss may nevertheless be regarded as caused by the accident". The passage referred to in March v Stramare was a discussion in the judgment of Mason CJ to the constraints imposed on causation in relation to the common law defence of contributory negligence.

14 The third step in the reasoning of the trial judge was to pick up an expression used in Lasermax Engineering Pty Ltd v QBE Insurance (Australia) Ltd [2005] NSWCA 66; 13 ANZ Ins Cas ¶61-643 at [5] where Ipp JA, summarising a decision of the Full Court of the Supreme Court of Western Australia dealing with the meaning of "directly caused" in a policy of insurance, stated that "[a] proximate cause is not the first, or the last or the sole cause of the loss; it is the effective or dominant or operative cause." The trial judge then asked, and answered in the negative, the question whether the positioning of the vehicle was "a dominant cause" of the plaintiff's injury.

15 Although neither party challenged this approach, it should not be adopted or applied in the future. If there is any principle which is uncontestable, it is that statutory interpretation must proceed by reference to the text of the statute to be applied. That is not to say that words are to be extracted and viewed in isolation, nor that the context or, where relevant, the legislative history and the history of amendments to the legislation should be disregarded. However, the operation of a current statute is not to be determined primarily by reference to statements in case law relating to the different language of other legislation, let alone insurance policies.

16 The proper construction of s 3A is by no means straightforward. The task has been rendered unnecessarily complex by the drafting device (at least where par (d) is engaged) of three consecutive uses of the expression "is caused by". Further, whilst no doubt s 3A applies to the statutory form of the policy in s 10, it applies generally to motor accident injuries as dealt with in Chs 3-6. These provisions regulate claims made under the common law but do not create some special statutory scheme of liability outside the general law of negligence. Dealing with causation differently with respect to a claim for third party insurance and in determining the common law liability of the driver or owner of the vehicle is a recipe for incoherence. Furthermore, the language construed in Allianz is no longer to be found in the definition of "injury" nor, since its removal to s 3A, is the phrase "if and only if" used at all.

17 The question of causation in determining fault (at least in the most common case of negligence) is to be addressed by reference to s 5D of the Civil Liability Act. That section adopts a "but for" test of "factual causation" and seeks to separate out any normative requirements that were thought to be concealed within a formula such as "the proximate cause": March v Stramare at 510 (Mason CJ). The proceedings in Allianz predated the commencement of Pt 1A of the Civil Liability Act, which therefore did not apply: Civil Liability Act, Sch 1, Pt 3, cl 6(1) (the relevant commencement date being 6 December 2002). In the subsequent case of Nominal Defendant v GLG Australia Pty Ltd [2006] HCA 11; 228 CLR 529, which applied the reasoning in Allianz, the proceedings were also commenced before the commencement of the Civil Liability Act, Pt 1A: see GLG Australia Pty Ltd v The Nominal Defendant [2004] NSWCA 166 at [21].

18 This is not the first occasion on which the issue of statutory construction has been raised. It was adverted to, somewhat obliquely, in Nominal Defendant v Hawkins [2011] NSWCA 93; 58 MVR 362 at [45], by Hodgson JA. It was referred to again, much more recently, in Leach v The Nominal Defendant (QBE Insurance (Australia) Ltd ) [2014] NSWCA 257; 67 MVR 494 at [11], by McColl JA, and at [86], by Sackville AJA. There must come a point at which the courts can no longer disregard the enacted law because the parties blithely continue to argue cases on some other basis.

19 Applying s 5D, it would be necessary to determine that "the negligence was a necessary condition of the occurrence of the harm": s 5D(1)(a). This requires that the negligence be identified. If that test is satisfied, it is then necessary to consider whether "it is appropriate for the scope of the negligent person's liability to extend to the harm so caused": s 5D(1)(b).

20 In the circumstances explained by Adamson J, the plaintiff did not establish on the balance of probabilities that the driver of the vehicle was negligent. The evidence did not establish with any degree of specificity where the rabbit which Ms Mammone sought to shoot was situated in relation to the vehicle. The only witness who gave evidence was the plaintiff, who did not see the rabbit. A statement taken from Ms Mammone by the police did no more than reveal that the rabbit had been caught in the spotlights, without any clear indication as to whether the spotlights were focused entirely in front of the vehicle or in part to one side or the other.

21 Wherever the rabbit was, it is clear that Ms Mammone was not aiming at the rabbit when the gun fired: indeed, she was not aiming at all, but the gun was pointed down into the cabin of the vehicle. Assuming that the relevant negligent act related to the positioning of the vehicle, there was simply no evidence to suggest, even by way of speculative inference, what precautions a reasonable person in the position of the driver would have taken: Civil Liability Act, s 5B(1). Indeed, because there was no evidence that the driver knew where the rabbits were, it is by no means clear that relevant "precautions" were not taken.

22 It was not established that the position of the vehicle with respect to the rabbit could properly be described as causally related to the accident. Accordingly, the plaintiff should have failed because he did not establish factual causation within the terms of s 5D(1)(a) of the Civil Liability Act.

23 In other respects I agree with the reasoning of Adamson J.

24 MEAGHER JA: I agree for the reasons given by Adamson J that this appeal should be dismissed with costs. I also agree with Basten JA's observations at [3] to [22] which provide additional reasons for the making of that order.

25 ADAMSON J: Favian Bayon appeals against the judgment of Curtis DCJ entered in favour of GIO General Limited (the respondent) following a trial in the District Court. The appellant brought proceedings against his father, Juan Bayon (Mr Bayon), Ms Mammone and the respondent in which he claimed damages in respect of injuries sustained by him on the evening of 8 August 2009 when he was shot in the course of a hunting expedition. At the time he was the passenger in the front cabin of a stationary Toyota Hilux utility of which Mr Bayon was the driver. Amy Mammone and her husband, Christian Vargas, were in the tray of the utility. Ms Mammone lost control of the rifle she was holding while attempting to shoot a rabbit. The bullet entered the cabin and struck the appellant, who was almost 15 years old. Mr Bayon was insured under a third party policy in accordance with the Motor Accidents Compensation Act 1999 (NSW) (the Act) as the owner and driver of the utility.

26 The primary judge ordered judgment in favour of the respondent on the basis that his Honour was not satisfied that the act of positioning the cab of the vehicle between the shooters and the intended prey, which was the only fault alleged against Mr Bayon that might relate to the driving of the insured vehicle, was a "dominant cause" of the appellant's injuries. In these circumstances his Honour did not consider it necessary to determine whether Mr Bayon was actually at fault as alleged. Judgment in favour of Ms Mammone was also ordered.

The grounds of appeal and orders sought

27 The appellant challenged only the judgment in favour of the respondent, which was the only active contradictor in the trial and the appeal. Although the grounds of appeal are variously expressed, the appellant, in substance, contended that the injury he suffered was covered by the statutory policy and that the primary judge was in error in not so finding. He contended that this Court could determine all relevant factual questions and ought order judgment against the respondent in the amount of $500,000, being the damages agreed in the event of liability being established. It was not suggested by either party that the primary judge had any relevant advantage in seeing or hearing the appellant which would constrain the extent of this Court's review of the evidence. Accordingly, this Court is both entitled and obliged to assess the evidence and make its own findings of fact: s 75A(6) of the Supreme Court Act 1970 (NSW).

Relevant legislation

28 The Act provides for a statutory third party policy, the terms of which are contained in the Act, which indemnifies owners and drivers of registered motor vehicles in respect of liability in negligence to those injured as a result of motor vehicle accidents: s 10. By reason of the policy, the statutory insurer is liable to a person who has suffered "injury" (as defined) caused by the "fault" (as defined) of the owner or driver subject to the restrictions in the Act.

29 The term "driver" was relevantly defined in s 3 of the Act to mean a person driving a motor vehicle and included a person for the time being in charge of a motor vehicle. The term "fault" was defined in s 3 as meaning negligence or any other tort. Section 3 defined "motor accident" as follows:

"motor accident means an incident or accident involving the use or operation of a motor vehicle that causes the death of or injury to a person where the death or injury is a result of and is caused (whether or not as a result of a defect in the vehicle) during:

(a) the driving of the vehicle, or

(b) a collision, or action taken to avoid a collision, with the vehicle, or

(c) the vehicle's running out of control, or

(d) a dangerous situation caused by the driving of the vehicle, a collision or action taken to avoid a collision with the vehicle, or the vehicle's running out of control."

30 Section 3A of the Act relevantly provided:

General restrictions on application of Act

(1) This Act (including any third-party policy under this Act) applies only in respect of the death of or injury to a person that is caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle and only if the death or injury is a result of and is caused (whether or not as a result of a defect in the vehicle) during:

(a) the driving of the vehicle, or

(b) a collision, or action taken to avoid a collision, with the vehicle, or

(c) the vehicle's running out of control, or

(d) a dangerous situation caused by the driving of the vehicle, a collision or action taken to avoid a collision with the vehicle, or the vehicle's running out of control.

31 Subparagraph (d) was added to ss 3 and 3A of the Act by [2] and [3] respectively of Schedule 1 to the Motor Accidents Compensation Amendment Act 2010 (NSW). Clause 38 of the Amending Act provided that these amendments extended to an incident or accident that occurred on or after 1 October 2006 and accordingly to the accident the subject of the appeal.

32 Section 3B of the Act relevantly provided:

Restrictions on application of claims provisions-accident must be insured or work accident

(1) The application of Chapters 3-6 in respect of death or injury that results from the use or operation of a motor vehicle is limited to death or injury that:

(a) is caused by a motor accident for which the vehicle has motor accident insurance cover, or

The facts relied on in the appeal

33 The appellant was the only witness at the trial. The other evidence on liability at trial comprised the Electronically Recorded Interview with a Suspected Person (ERISP) which police officers conducted with Ms Mammone. There were also photographs of the utility and of the plaintiff's injury.

34 The photographs of the utility showed that it was configured for hunting. A row of spotlights was fixed at the level of the top of the cabin at the junction between the tray of the utility and the cabin. Their purpose was to illuminate the prey so that it could be killed by shooters standing in the tray of the utility. Although the spotlights were facing forward in the direction of the utility, the evidence established that the position of at least one of the spotlights could be changed to make it face the rear of the utility. There was also a handheld spot light which could be pointed in any direction to illuminate prey.

35 The evidence established that the practice adopted in such expeditions was that those who stood on the tray of the utility would watch for prey. When an animal was sighted, the occupant or occupants of the tray would tap on the roof of the cabin to indicate that the driver should stop. Once the vehicle was stationary those in the tray would try to shoot the prey.

36 On 8 August 2009 some rabbits were sighted, the cabin roof was tapped and the utility was stopped, although the engine was left running. Someone in the back of the utility took a shot and missed. The gun was then handed to Ms Mammone who also took a shot and missed. She rested the gun on the top of one of the lights on the roof of the cabin. As she was about to take a second shot the gun slipped off the light and discharged. The bullet entered the cabin and struck the appellant's head. The gun must have been pointing down at a steep angle when the bullet was discharged as it pierced the roof of the cabin about 310mm from the left edge of the roof and about 260mm forward of the rear top edge of the cabin.

37 Ms Mammone was not licensed to use a firearm. She told police that no one had asked her whether she had the requisite licence or had had any experience with firearms.

Whether the statutory policy responded

38 Mr Sheldon SC, who appeared with Mr Khandhar on behalf of the appellant, contended that Mr Bayon was at fault by positioning the vehicle so that the cabin and its occupants were between the shooters and the prey. Mr Sheldon submitted that a reasonable person would not have permitted a shot to be taken while there were people located on the range side of the weapons, including in the cabin. He submitted that the risk of harm was created by the presence of people in the cabin between the shooters and the prey. He contended further that the transportation of people in the cabin and on the tray could create a dangerous situation and that Mr Bayon should not have stopped to allow shooting when the prey was in front of the vehicle. He argued that the dangerous situation was caused by the positioning of the vehicle, which was part of its "driving".

39 Mr Deakin QC, who appeared with Ms Compton on behalf of the respondent, contended that the driving had ceased and that the undoubtedly dangerous situation was not caused by the driving of the vehicle. He submitted further that the incident did not involve the use or operation of a motor vehicle since, at the relevant time, the utility was being used as a shooting platform. He also contended that there was no fault on the part of Mr Bayon in the use or operation of the vehicle that caused the injury.

40 These submissions are addressed in more detail below by reference to the particular issues to which the statutory wording gives rise.

41 Counsel took this Court to various authorities concerning the application of the statutory policy in its various forms to different factual situations. I propose to determine whether the statutory policy responds in the present case by reference to the Act itself before considering whether any authority bears on the question.

Whether Mr Bayon was at fault

42 In order to determine whether the statutory policy applies, it is necessary to identify the alleged fault of the owner or driver of the motor vehicle. In the present case, as the primary judge found, the only fault pressed at trial against the respondent that related to driving was the positioning of the vehicle such that the cabin lay between the tray where the shooters were standing and the identified prey. As referred to above, the primary judge made no finding of fault.

43 By reason of the definition of "fault" it is necessary for the appellant to establish that such positioning was negligent. Divisions 1-4 and 8 of Part 1A of the Civil Liability Act 2002 (NSW) apply: s 3B(2)(a). Accordingly, the duty of care is to be determined by reference to ss 5B and 5C and causation is to be determined by reference to ss 5D and 5E of the Civil Liability Act. The appellant was required to establish that there was a foreseeable risk of not insignificant harm and that a reasonable person in Mr Bayon's position would have taken precautions against the risk of harm, having regard to the probability that harm would occur if care was not taken, the likely seriousness of the harm, the burden of taking precautions and the social utility of the activity that created the risk: s 5B of the Civil Liability Act. The appellant also bore the onus of establishing that the negligence was a necessary condition of the occurrence of the harm and that it was appropriate for the scope of the Mr Bayon's (and therefore the respondent's) liability to extend to the harm so caused: ss 5D and 5E of the Civil Liability Act.

44 Although it might be inferred that Mr Bayon was negligent in failing to inquire whether Ms Mammone was licensed, the risk of harm from a bullet was present whether the shooter was licensed or not, and whatever the shooter's level of expertise. In any event this was not the way the trial was conducted and therefore need not be considered further.

45 The appellant did not establish that Mr Bayon failed to take any precaution that a reasonable person in his position would have taken to avoid the relevant risk of harm. That risk, from the perspective of the driver of the vehicle, was said to be that someone in the vehicle cabin might be shot. It was submitted that in response to that risk a reasonable person in the driver's position would have taken the precaution of not positioning the vehicle, when stationary, so that it was facing in the direction of the prey. There are difficulties with this submission, the acceptance of which is essential for the appellant's case on negligence. The risk of an accidental shooting from the mishandling of a firearm, as occurred, was ever present. That risk was of injury or worse to any person within the range of the firearm. It was not a risk limited to an accidental shooting through the roof of the cabin. It existed irrespective of the direction in which the vehicle faced and was not avoided or significantly minimised by positioning the vehicle in any particular way because mishandling of the firearm obviously could result in its discharge at any time and in any direction. Furthermore, the hand-held spot light permitted prey to be followed or illuminated anywhere around the vehicle so that the initial positioning of the vehicle did not have the consequence that any specific risk associated with shooting over the roof of the cabin was avoided or minimised by the taking of that precaution.

46 Finally, the evidence did not establish where the rabbit that had been caught in the spotlight was, in relation to the stationary vehicle, or that Mr Bayon knew where it was. It follows that it was not shown that the vehicle was not positioned as it was contended it should have been and, if it was not, that Mr Bayon was negligent. For these reasons the appellant did not establish that his injury was caused by the fault of the driver within s 3A(1) of the Act. Therefore the statutory policy did not respond. This is sufficient to dispose of the appeal. However, in deference to counsel, I shall address the further submissions made.

Whether the incident or the accident involved the use or operation of a motor vehicle

47 Mr Sheldon contended that the accident or incident involved the use or operation of a motor vehicle because the participants were on or in the vehicle, which still had the ignition on and the vehicle was being used for the purpose for which it was designed, namely as a mobile shooting platform. He argued that this was analogous to the unloading of a semi-trailer, which he contended falls within its use and operation since it is a vehicle that is designed to be loaded, and therefore also, necessarily, unloaded.

48 Mr Deakin submitted that the vehicle was not positioned for any reason associated with its use as a motor vehicle, such as to pause for a gate to be opened or a toll to be paid. Rather, it was positioned so that it could be used as a platform for shooters to shoot prey not only in the area illuminated by the forward-facing spotlights that were positioned on the vehicle but also by the handheld spotlight that could be pointed in any direction by an occupant of the vehicle. Although the vehicle was used, it was not used as a motor vehicle.

49 The Act does not qualify the words "use or operation of a motor vehicle" by reference to such use or operation "as" a motor vehicle. There are other restrictions in s 3A which confine the liability of the statutory insurer and, in my view, it is not appropriate to apply a further gloss to the express words of the section. In my view, it is arguable that the accident involved the use of a motor vehicle, although it is not necessary to decide this question in light of my view on the other bases in the Act that have the effect of excluding the appellant from cover under the statutory policy.

Whether the injury was caused by the fault of the driver of the motor vehicle in the use or operation of the vehicle

50 The appellant was injured because a firearm went off accidentally and discharged a bullet in a direction other than the one intended by the shooter. It is difficult to see what this had to do with the fact that the vehicle was positioned so that it was facing prey that had earlier been observed and which led to the people in the tray signalling to Mr Bayon to stop the vehicle. The positioning of the vehicle (being the postulated fault) merely had the effect of placing the appellant, who was seated in the cabin, in what happened to become the line of fire. His position, except with the benefit of hindsight, was no more dangerous than any other position in the vicinity. A bullet discharged accidentally can go anywhere. That it happened to strike the appellant in the cabin does not convert Mr Bayon's act of positioning the vehicle there into a cause of the injury in the use or operation of the vehicle. If, for example, the cabin had been evacuated so that there was no one between the shooters and the prey, a bullet discharged accidentally could have hit anyone in the vicinity, including those who had placed themselves behind the cabin and alongside the tray of the utility.

51 For these reasons, I am not satisfied that, even if Mr Bayon was at fault and the injury was caused in the use or operation of the vehicle, the injury was "caused by" any fault in the use or operation of the vehicle.

52 For the reasons given above, ss 5D and 5E of the Civil Liability Act apply. However, neither party referred to these provisions at trial. Nor did the trial judge refer to them. I do not consider the application of these provisions to produce a result different than the finding on causation made by the primary judge in the present case. In these circumstances I do not propose to say anything further about their effect on causation.

Whether the injury was a result of and was caused during the driving or during a dangerous situation caused by the driving

53 I shall assume that the incident involved the use or operation of a motor vehicle, for the purposes of addressing the next question: whether injury was a result of and was caused during either the driving of the vehicle or during a dangerous situation caused by the driving of the vehicle.

54 Mr Sheldon submitted that Mr Bayon was still driving the vehicle when the accident occurred because the ignition was still on. He also contended that the accident happened during a dangerous situation caused by the driving of the vehicle because the positioning of the vehicle caused a dangerous situation, as a result of which the appellant was injured.

55 Mr Deakin submitted that (d) in s 3A of the Act ought not be read too widely because otherwise it would deprive (a) of any meaning. He relied on the legislative history of the amendment and the particular evil which it was designed to remedy. The Second Reading Speech to the amending Act explained that subparagraph of (d) was added to the definition in response to this Court's decision in Zotti v Australian Associated Motor Insurers Limited [2009] NSWCA 323.

56 The applicant in Zotti was seriously injured when he lost control of his bicycle at an intersection. About two hours earlier there had been a motor vehicle collision at the intersection involving Mr Basa, whose compulsory third party insurer was the respondent. This Court dismissed an appeal from Neilson DCJ who had found that there was no "injury" within the meaning of the Act because there was no temporal connection between the oil spillage and the bicycle accident. This Court held that the collision was over when the vehicles had been removed and that the oil on the road was merely the aftermath, not a continuation of the original event. Mr Deakin submitted that (d) was added to s 3A of the Act to provide cover for accidents that had been caused by the consequences of collisions, although, because of the lapse of time they could not be regarded as being part of the collision.

57 I do not consider the dangerous situation to have been caused by the driving. In my view, the dangerous situation was caused by the presence of people and firearms without a safe system or protocol for their discharge. That situation was not a result of the driving of the vehicle.

Whether the accident was a "motor vehicle accident" within the meaning of s 3B of the Act

58 The restrictions contained in s 3A of the Act are also contained in the definition of motor vehicle accident in s 3, which, in turn, is incorporated into the restriction in s 3B that the injury is caused by a motor vehicle accident as defined. Accordingly, for the reasons given above, the accident was not a "motor vehicle accident" within the meaning of s 3B.

Authorities referred to in submissions

59 The authorities to which this Court has been referred in submissions reveal the extent to which the results in individual cases turn on their facts and the wording of the Act at the relevant time. There is, in my view, little to be gained by referring to passages which addressed different factual situations and, in many cases, different iterations of the Act, which has undergone considerable amendment in recent decades. Such analysis has a tendency to compromise the construction and application of the terms of the Act which govern the case to be determined. In these circumstances I do not propose to address the authorities referred to.

Proposed orders

60 I propose the following orders:

(1) Appeal dismissed.

(2) Appellant to pay the respondent's costs.

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Decision last updated: 18 December 2014