CITATION: 	O’Connor v Motor Accidents (Compensation) Commission [2017] NTSC 36

PARTIES:	O’CONNOR, Emma Louise

	v

	Motor Accidents (Compensation) Commission

TITLE OF TRIBUNAL:	THE MOTOR ACCIDENTS (COMPENSATION) TRIBUNAL OF THE NORTHERN TERRITORY

JURISDICTION:	SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION

FILE NO:	M4 of 16 (21635765)

DELIVERED ON:	11 May 2017

DELIVERED AT:	Alice Springs

HEARING DATE:	2 May 2017

JUDGMENT OF:	RILEY J

CATCHWORDS:

MOTOR VEHICLE ACCIDENT

Unlicensed Driver – Application of Exclusionary Provision - Compensation For Loss of Earning Capacity – Lump Sum Compensation For Permanent Impairment – Section 9C Motor Accident Compensation Act

REPRESENTATION:

Counsel:
	Applicant:	B O’Loughlin
	Respondent:	D McConnel

Solicitors:
	Applicant:	Povey Stirk
	Respondent:	Hunt & Hunt

Judgment category classification:	B
Judgment ID Number:	Ril1701
Number of pages:	18
IN THE MOTOR ACCIDENTS 
(COMPENSATION) TRIBUNAL 
OF THE NORTHERN TERRITORY

O’Connor v 
Motor Accidents (Compensation) Commission [2017] NTSC 36
No. M4 of 2016 (21635765)

	BETWEEN:

	O’CONNOR, Emma Louise
	Applicant

	AND:

	MOTOR ACCIDENTS (COMPENSATION) COMMISSION
	Respondent

CORAM:	RILEY J

REASONS FOR JUDGMENT

(Delivered 11 May 2017)

[1]	In 1979 the Motor Accidents (Compensation) Act established a no fault compensation scheme in respect of death or injury arising out of motor vehicle accidents and, in so doing, abolished certain common law rights in relation to such accidents. Subsequently there have been amendments to the Act providing for the exclusion from entitlement to certain benefits of those who fall into identified classes such as drivers under the influence of alcohol or drugs, where the injured person was involved in criminal conduct contributing to the accident, those who were engaged in conduct that created a substantial risk of injury and who recklessly ignored the risk, and numerous others. This case involves the application of an exclusion relating to unlicensed drivers.
[2]	The applicant was seriously injured on 21 October 2015 when a vehicle driven by a drunk driver collided with her while she was seated on a stationary motorcycle at the edge of Len Kittle Drive in Alice Springs. The respondent concedes that the collision was an accident within the meaning of the Act and that the applicant is eligible for benefits under the Act. However, the respondent determined that the applicant is not entitled to (a) compensation for loss of earning capacity or (b) lump-sum compensation for permanent impairment on the ground that the accident occurred while she was unlicensed and driving the motorcycle on which she had been seated. The respondent maintained she was thereby precluded from receiving such compensation pursuant to the terms of s 9C of the Act.
The Accident
[3]	Prior to 21 October 2015, with the assistance of her husband, Jesse O’Connor, the applicant purchased a new Yamaha motorcycle. On the morning of 21 October 2015 the applicant passed the theoretical component of her motorcycle learner’s licence but did not, in fact, have a licence to ride a motorcycle. On the evening of 21 October 2015 Mr O’Connor rode the motorcycle to Len Kittle Drive and the applicant followed in their motor vehicle. Their purpose was to allow the applicant to practice riding on a quiet street on the southern outskirts of Alice Springs under the instruction of her husband.
[4]	The applicant had some experience in riding motorcycles off-road. When they arrived Mr O’Connor explained the operation of the motorcycle to the applicant prior to her riding it. She then rode the motorcycle for a distance of approximately 800m in a southerly direction with Mr O’Connor driving slowly behind her. She stopped the motorcycle, had a discussion with her husband and then rode the motorcycle back to the commencement point of the journey. Her husband followed behind. The applicant stopped the motorcycle just off the roadway a little south of the Blatherskite Park entrance. She placed the motorcycle in neutral, put her feet on the ground and spoke with her husband. The engine of the motorcycle continued running.
[5]	Mr O’Connor complimented the applicant on her riding. The applicant and her husband then talked about what would happen next including her doing a U-turn to enable her to ride some more. He gave her “a few tips” in relation to her riding. At the suggestion of Mr O’Connor the applicant manoeuvred the motorcycle onto the bitumen by using her feet. She did not use the engine or the gears. At the time, and also at the suggestion of Mr O’Connor, her left indicator was on throughout as was her brake light when any car approached. The purpose was to make her more visible to any traffic on the road.
[6]	At about that time the sister of the applicant, Rebecca Richards, arrived and parked her vehicle on the dirt verge to the side of the road in front of the motorcycle. As she arrived she saw her sister talking with Mr O’Connor. Ms Richards got out of her vehicle and talked to the applicant and Mr O’Connor. In her evidence Ms Richards said that at one point the applicant rolled the motorcycle forward by pushing it using her feet. At the time the motorcycle was in neutral. Thereafter, Ms Richards was standing in front of the motorcycle and a little to one side as the discussion proceeded.
[7]	At the hearing there was some debate as to whether the applicant moved the motorcycle from the position just off the road to the position just on the road before Ms Richards arrived or, alternatively, in her presence. I conclude that Ms Richards was present at that time. The initial statutory declaration of Mr O’Connor says that was the order of events and the evidence of Ms Richards would seem to confirm it to be so. The suggestion to the contrary in the affidavit of Mr O’Connor filed in these proceedings is in error in this regard.
[8]	As the group talked the applicant was seated on the motorcycle with her two feet on the ground and her left hand was resting on the petrol tank or her leg. The motorcycle was in neutral and the applicant’s right hand was on the handlebar with the front brake engaged.
[9]	While they were talking a taxi approached heading north. The taxi moved to the far side of the road to travel around them. They continued talking for a period of time. Mr O’Connor was cross-examined as to the length of time and responded that he was not sure but that “it could have been five, ten, 15 minutes”. Ms Richards gave evidence of five minutes. The group then saw a second car heading towards them travelling north. The vehicle was being driven by an intoxicated driver who, without warning, swerved his vehicle at the group. Mr O’Connor and Ms Richards jumped to safety. The vehicle struck the motorcycle on which the applicant was seated and propelled her some 24m along the roadway. The applicant has no memory of the incident. She suffered serious injuries including skull fractures, collapsed lungs, a fractured vertebra and a fractured pelvis along with other physical injuries and a psychiatric injury. The car continued on without stopping. The driver was subsequently identified, charged and ultimately sentenced to a term of imprisonment.
[10]	It is not surprising that the evidence as to the timing of the conversation was imprecise. Each of the witnesses had been involved in a very traumatic incident and was not called upon to record the relevant times until sometime later. They each did their best in difficult circumstances. There is some objective evidence which assists in calculating the length of time that the applicant was seated on the motorcycle before the collision. CCTV footage from premises some 800m from the point of impact records the passing of Ms Richards in her car at 6.51pm and then shows the offending vehicle driving past at 6.57pm. This suggests the offending vehicle reached the scene about six minutes after the arrival of Ms Richards. In addition it is not in dispute that before the arrival of Ms Richards, the applicant and Mr O’Connor had a discussion as to what was to happen next during which he complimented her on her driving and gave her “a few tips”. The time spent by the applicant on the side of the road would therefore seem to be at least six minutes and in all likelihood a longer period.
The Legislation
[11]	There is no dispute that the applicant was injured in circumstances that entitled her to compensation payable under the Act. However, the respondent contends that the applicant is not entitled to compensation for loss of earning capacity or lump-sum compensation for permanent impairment because of the exclusion contained in s 9C of the Act. That section is in the following terms:
9C Exclusion: unlicensed driver

(1) 	A person is not entitled to benefits to which this section applies for an injury suffered in, or as a result of, a motor accident if:

(a) 	the accident occurred while the injured person was driving a motor vehicle; and

(b) 	one of the following applies:

(i) 	the injured person had never held a licence to drive a motor vehicle of the relevant class under a law of the Territory or another jurisdiction;

(ii) 	the injured person had held such a licence but it was, at the time of the accident, under suspension (for reasons other than for the enforcement of a fine or penalty); 

(iii) 	the injured person had held such a licence but it had been cancelled;

(iv) 	the injured person had held such a licence but it had lapsed or expired at least 3 months before the date of the motor accident;

(v) 	the injured person held such a licence but was driving the motor vehicle in breach of conditions on which the person was authorised to drive the motor vehicle.

(2) 	However, subsection (1) does not apply if, in the opinion of the Commission, the circumstances in which the vehicle was being driven amounted to an emergency.

(3) 	The benefits to which this section applies are:

(a)	compensation for loss of earning capacity; and

(b) 	lump sum compensation for a permanent impairment.

[12]	The applicant acknowledges that she did not hold a licence to ride the motorcycle at the relevant time and had never held a motorcycle licence in the Northern Territory or elsewhere. However, she contended that, contrary to the argument of the respondent, the accident did not occur “while the injured person was driving a motor vehicle”. There is no dispute that the applicant has suffered a loss of earning capacity and a permanent impairment and these matters are not for determination on this occasion. The sole issue to be resolved is whether the accident occurred while the applicant was driving the motorcycle.
[13]	The respondent does not deny the essential elements of the applicant’s claim but, rather, relies upon a statutory ground of avoidance. The parties agree the burden of proving that the exclusion has application rests upon the respondent. The standard of proof is on the balance of probabilities. Further, given that the respondent is alleging the applicant committed an offence, being the offence of driving unlicensed, clear or cogent evidence is required for this ground to be established, applying the Briginshaw test.
Construction of the Exclusion Provision
[14]	The task of statutory construction must begin with a consideration of the text itself. The High Court observed in Alcan (NT) v Territory Revenue:
Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of the provision, in particular the mischief it is seeking to remedy.
[15]	The Motor Accidents (Compensation) Act established a no fault compensation scheme in respect of death or injury arising out of motor vehicle accidents. Whilst there have been amendments to the Act providing for exclusion from compensation, including s 9C, the underlying thrust of the legislation is beneficial in its nature and “should receive a broad and benign construction so as to prevent its obvious purpose from being defeated”.
[16]	In my opinion the meaning of the text of the exclusion is clear and it is not necessary to turn to these principles of interpretation in order to determine the legislative intention.
[17]	It was submitted on behalf of the respondent that the intention of s 9C was that anyone who drives a vehicle should be licensed and, if they are not licensed, and they are injured, they should be entitled to have all basic medical expenses covered but loss of income and lump-sum compensation would be excluded. It was submitted this was a justifiable policy decision in aid of encouraging such unlicensed persons not to drive. This may be so but it does not assist in determining whether, in the circumstances of this case, the applicant was injured “while… driving”.
[18]	Further, it was submitted that it is not necessary that the driving of the motorcycle caused or even contributed to the accident for the exclusion to apply. Section 9C is not concerned with the contribution to the accident of the vehicle being driven by the injured person. That, of course, is so. This is a “no fault” compensation scheme and s 9C does not purport to alter the nature of the scheme. The issue remains whether the applicant was injured “while… driving”.
“while … driving”
[19]	The relevant part of the exclusion applies to a person injured in a motor accident where the injured person is unlicensed and where the accident occurred “while the injured person was driving a motor vehicle”. This wording is different from that which applies in some other jurisdictions and which has been considered by other Courts. For example, in the Victorian case of Transport Accident Commission v Kymantas the relevant exclusion provision referred to a person who was “the driver of the motor vehicle” and the definition of the word “driver” included a person who is in charge of the motor vehicle. This is a wider concept than applies to the Northern Territory Act. In the South Australian case of WorkCover Corporation v Ugly Dog Transport and Ors a range of expressions was considered including “a consequence of… the driving of the vehicle”, a wider expression than that found in s 9C of the Act. The discussion in the various authorities referred to in that case is helpful but must be considered in light of the difference in the wording of the exclusion clauses.
[20]	The High Court gave consideration to a similar provision in Insurance Commission of Western Australia v Container Handlers Pty Ltd and others where the Court considered a legislative requirement in Western Australia that every motor vehicle be insured “in respect of the death of or bodily injury to any person directly caused by, or by the driving of, the motor vehicle”. That requirement was modified by a further provision that “the death or bodily injury to any person shall not be taken to have been caused by a vehicle if it is not a consequence of the driving of that vehicle or of the vehicle running out of control”. The observations of members of the High Court regarding the meaning of the word “driving” are of assistance although care must be taken because of the wording of the modifying provision.
[21]	In that case McHugh J discussed the meaning of “driving” in the provision and observed that it had its ordinary English meaning which included to “operate and direct the course of” and to “operate and control the course of” a vehicle. His Honour noted that “driving” referred to a consequence of the actual operation and control of the direction and speed of the vehicle. It was noted that this interpretation was confirmed by the expression “or the vehicle running out of control” which conveys the notion of a vehicle in motion. His Honour observed that “it is not always easy to draw a line between an activity described as “driving” and one that cannot be so described.”
[22]	Kirby J observed that the “words restricted the Commission’s liability by reference to the limiting notions of causation (directly) and locomotion (driving) of the insured motor vehicle”. His Honour treated the word “driving” as requiring the vehicle to be moving.
[23]	Callinan J said:
The words “running out of control” clearly refer to and are confined to the notion of a vehicle in motion. The word “driving” should be read to the same effect. The two phrases in which the words separately occur are plainly related and the word used in the latter, “running”, conveying the idea of motion, strongly suggests that “driving” in the former is used in the same sense.
And also:
The insurer will only be liable if a personal injury or death has been directly caused by the driving, that is the operation of a motor vehicle while it is in the control of a driver in the course of putting it into, keeping it in, or bringing its motion to a conclusion, or if the motion is uncontrolled.
[24]	Heydon J observed that the expression “the driving” in this context is “the activity conducted by a human being in the driver’s seat who manages and directs the course of its movement by operating the controls – preparing to start, starting, accelerating, braking, steering, giving appropriate signals, operating the horn and lights appropriately, stopping and turning the engine off”.
[25]	There is no definition of “driving” in the Motor Accidents (Compensation) Act and the expression is not modified as in the case of Insurance Commission of Western Australia v Container Handlers Pty Ltd and others. 
[26]	In my opinion, in the absence of a definition of “driving” in the Act, it was the intention that the term should bear its ordinary, everyday meaning. The Macquarie Dictionary (fifth edition) says in relation to the verb “drive” that it is “to cause and guide the movement of (an animal, vehicle, etc)”. In Stroud’s Judicial Dictionary of Words and Phrases (6th edition) it is observed that the essence of driving is “the use of the driver’s control in order to direct the movement of the vehicle”.
[27]	As the applicant submitted the word “driving” is a present tense verb which suggests the act of driving must occur at the time that the unlicensed driver is injured. The additional requirement of the exclusion that the accident must occur “while” the injured person is driving adds a temporal element to the driving. The accident must occur while the driving is taking place rather than before or after that time.
[28]	This does not mean that the exemption would not have application in all cases where the subject vehicle is stationary at the time of the accident. If, in the course of driving, the vehicle is stopped at an intersection, or at a red light, or for some other reason in order to comply with traffic laws or traffic conditions, the driver would still be “driving” for the purposes of the section. However, if the driver moves off the roadway and parks the vehicle it will be a matter of fact and degree as to whether the act of driving has ceased.
[29]	The respondent submitted that there is an attempt to prescribe the meaning of the word “driving” by definition in some Northern Territory legislation including definitions which appear in the Motor Vehicles Act, the Traffic Act and the Criminal Code. I do not think those definitions assist for present purposes. They have not been adopted in the Motor Accidents (Compensation) Act either directly or by implication. They are definitions designed to provide a particular meaning for the expression in the particular circumstances addressed by the relevant legislation. For example under the Criminal Code a wider definition of “driver” is provided for the offence described as “hit and run”. The definition extends the meaning of “driver” by providing that it “includes a person who controls the vehicle”. In the Traffic Act there is a definition of the word “drive” for the purposes of the offence of driving under the influence of alcohol and the definition refers to the “act of driving a motor vehicle” and goes on to include other matters such as starting the engine, putting a vehicle in motion and attempting to do those things. Again there is an extension of what is meant by “driving”. In the Motor Vehicles Act  there is a similar, but different, extension of the meaning of the word “drive” as meaning “to drive, or be in control of …”. The word “driver” is defined to mean a person driving a vehicle. I observe, in passing, that the need to provide an extended definition of a word suggests that the ordinary use of the word does not (or may not) cover the additional matters.
[30]	It was submitted on behalf of the respondent that the extended definition in the Motor Vehicles Act is relevant for present purposes because that Act contains provisions relating to licenses to drive. However, the word “driving” in s 9C of the Motor Accidents (Compensation) Act is not used in relation to the obtaining of a licence but rather is used to describe an activity undertaken by the injured person. The context is not the same. If an extended definition of the activity was intended this could easily have been included in the legislation, as has occurred in other legislation, but was not.
[31]	In the present case the evidence reveals that the applicant had been riding (or “driving”) the motorcycle without a licence. She had ridden along Len Kittle Drive for some distance with her husband driving slowly behind. She had stopped and then returned to the point where the accident occurred. She had parked the motorcycle off the edge of the roadway and then manoeuvred it back onto the very edge of the roadway by pushing with her feet whilst she was seated on the motorcycle. She did not engage the gears or use the engine for this purpose. She had intended to resume riding at some time but had taken no other steps toward doing so. She was in that position for at least five minutes, but probably longer, while she spoke with her husband and then had a conversation with both her husband and her sister. During that time she was seated on the motorcycle with the engine running. She had the left indicator flashing which, in the circumstances, indicated she was not then intending to put the motorcycle in motion but, rather, indicated it was stationary on the side of the road. Use of the right indicator would suggest the motorcycle was about to enter the main part of the roadway. The brake lights were on but only for the purpose of ensuring the motorcycle was visible to any traffic. The applicant had both feet resting on the ground, her left hand was resting on the petrol tank or her leg and her right hand was on the handlebar with the brake engaged. At some point during the conversation the applicant demonstrated the movement of her helmet visor to her sister and presumably did so with her free left hand. The motorcycle was in neutral. During this period the sister of the applicant was situated in front of the motorcycle and slightly to the side suggesting she did not expect the motorcycle to be taking off.
[32]	It will be a question of fact and degree as to whether an accident occurred while an injured person was driving. In my opinion the circumstances of this matter lead to a clear conclusion that, at the time of the accident, the applicant was not driving and the accident did not occur while the applicant was driving the motorcycle. The driving which the applicant had undertaken at an earlier time had been interrupted when the applicant stopped the motorcycle by the side of the road. She spoke with her husband and showed off the motorcycle and the helmet to her sister. This was not a momentary interruption but, rather, the episode of driving came to an end for a time. The break lasted five or more minutes and did not involve any activity that could be described as driving. The use of the left indicator during that time strongly suggested she was not driving or intending to drive. This remained so while the indicator was operating. She was not causing the vehicle to move and she was not guiding or directing its movement. The applicant was not driving at that time. In order to resume driving she would have been required to have her sister move out of the way, turn off the left indicator and activate the right indicator and then to have engaged first gear and accelerated in order to place the motorcycle in motion. She did none of those things and did nothing preparatory to doing any of them. The conclusion that she was not driving at the relevant time accords with the natural meaning of the words used in the exclusionary provision.
[33]	The exclusion provided by s 9C of the Act does not have application in the circumstances of this matter.
[34]	I will hear the parties as to the appropriate orders to be made.

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