The District Court of NSW delivered its judgment in the matter of Anthony Quinn v Toll Ipec Pty Limited & Ors on 15 July 2011.
The plaintiff, Mr Quinn, alleged that he was injured whilst trying to remove a gate from a trailer which was attached to a prime mover during the course of his employment on17 April 2003. The plaintiff alleged that he sustained an injury to his neck and left shoulder.
The proceedings were commenced by way of 2 separate sets of pleadings.
In the first set of pleadings, the plaintiff commenced proceedings against the first defendant, Toll Ipec Pty Limited (the owner of the prime mover), and the third defendant, Toll Equipment (FFM) Pty Limited (the owner of the trailer to which the gates were attached).
The fourth defendant was the relevant CTP insurer of the prime mover and had intervened in the proceedings to argue that the plaintiff’s injuries did not fall within the definition s 3 of the Motor Accidents Compensation Act 1999.
The second set of pleadings joined the plaintiff’s employer, Toll Pty Limited, as the defendant seeking Work Injury Damages.
The plaintiff gave evidence that he sustained an injury to his neck and left shoulder due to the gate itself and/or one or both of the 2 pins attached to its base being bent, twisted or otherwise damaged and causing the gate to stick as he attempted to lift it.
As a result, the plaintiff alleged he had to apply considerable upward force and in the end, the gate came from its slots, causing the gate to be suddenly propelled upward.
The plaintiff submitted that the relevant defect was that the gates were either twisted or damaged.
In the alternative, the plaintiff argued that if neither circumstance brought the accident within the relevant defect provisions, the third defendant was responsible for breach of duty under the provisions of the Civil Liability Act 2002 arising from its ownership of the trailer and its gates.
In relation to the second set of proceedings, the plaintiff argued that regardless of whether or not the accident was characterised as a motor vehicle accident, the plaintiff’s employer was liable on the basis that it failed to provide its employee with a safe system of work.
Judge Letherbarrow did not accept the plaintiff’s evidence at trial that the gate or the pins attached to it were twisted or damaged in any way. His Honour accepted the version of how the accident occurred as was recorded on the plaintiff’s Claim Form, namely that he sustained an injury whilst lifting the gates onto the semi-trailer.
Judge Letherbarrow concluded, on the balance of probabilities, that at some point in this lift the plaintiff lost control of the gate, causing it to tip over and be dropped. His Honour noted that this version of events accorded with the early more detailed histories as recorded in the Claim Form and hospital records.
At paragraph 89, his Honour stated the following:
“In the present case, adopting the approach of fitness for a designed or intended purpose from Zurich Australia Insurance Limited v CSR Limited, I find that there was no “defect” in the gate or trailer. The gate could be lifted by more than one person. There was nothing in its design or its intended use which required it to be lifted by only one person. Commercial exigencies may have meant gates were lifted by one person, but the fact that it could occur does not mean the gate or trailer into which it fits is defective.
“The only arguable “defect” was in the lifting and fitting of the gates in the method adopted, namely by using one person to do so.”
His Honour determined that even if it could be shown that the gate or one of its pins had been damaged, it was arguable that the real cause of any accident was the employer’s failure to have in place a safe loading operation or an appropriate system of maintenance or repair.
His Honour awarded judgment in favour of the first, third and fourth defendants in the first set of proceedings, and against the defendant in the second set of proceedings in the sum of $210,192.42.
However, given his findings on the defect issue, Letherbarrow DCJ found that the CTP insurer had no liability to indemnify the owner of the vehicle.
This decision confirms the principles in Zurich Australia Insurance Limited v CSR Limited and Toll Pty Ltd v Dakic & Anor  NSWCA 58.
Defect cases will always turn on their facts, however, in considering whether or not an injury is categorised as a motor vehicle accident or an unsafe system of work, insurers should turn their minds to what was the proximate cause of the injury to the plaintiff.