SUPREME COURT OF QUEENSLAND

SUPREME COURT OF QUEENSLAND CITATION: Suncorp Metway Insurance Limited v Sichter and ors [2010] QSC 164 PARTIES: FILE NO/S: BS 7571 of 2009 DIVISION: PROCEEDING: ORIGINATING COURT: SUNCORP METWAY INSURANCE LIMITED ABN 83 075 695 966 (applicant) v JOSHUA COLIN SICHTER (first respondent) and VERO INSURANCE LIMITED (second respondent) and SITA AUSTRALIA PTY LTD ABN 70 002 902 650 (third respondent) Trial Application DELIVERED ON: 21 May 2010 DELIVERED AT: Supreme Court of Queensland Brisbane HEARING DATE: 18 February 2010 JUDGE: ORDER: CATCHWORDS: Daubney J 1. I conclude that the separate question whether the claim by Joshua Colin Sichter against SITA Australia Pty Ltd and Suncorp Metway Insurance Limited the subject of the notice of accident claim form in Exhibit AJR-3 to the affidavit of Anthony John Rosenthal filed in proceeding 7064/09 is a claim which falls within section 5 of the Motor Accident Insurance Act 1994 should be answered in the negative. 2. I will hear the parties as to further directions and as to costs. INSURANCE MOTOR VEHICLES COMPULSORY THIRD PARTY INSURANCE AND LIKE SCHEMES RISK OR LIABILITY AS A CONSEQUENCE OF DRIVING OF MOTOR VEHICLE where the plaintiff was

2 COUNSEL: SOLICITORS: standing adjacent to the wheelie bin on the footpath where the garbage collection truck moved towards the property and pulled up adjacent to the wheelie bins where the truck was stationary where the mechanical lifting mechanism was engaged to lift and empty the bin whether this was the result of the driving of a motor vehicle under section 5(1)(a)(i) of the Motor Accident Insurance Act 1994 INSURANCE MOTOR VEHICLES COMPULSORY THIRD PARTY INSURANCE AND LIKE SCHEMES RISK OR LIABILITY AS A CONSEQUENCE OF COLLISION WITH MOTOR VEHICLE - where the plaintiff was standing adjacent to the wheelie bin on the footpath where the garbage collection truck moved towards the property and pulled up adjacent to the wheelie bins where the truck was stationary where the mechanical lifting mechanism was engaged to lift and empty the bin where the plaintiff was picked up with the garbage bin by the mechanical arm of the garbage truck whether this was the result of a collision with a motor vehicle under section 5(1)(a)(ii) of the Motor Accident Insurance Act 1994 Motor Accident Insurance Act 1994 (Qld), s3, s5(1)(a) AMP General Insurance Ltd v Kull (2005) 44 MVR 339, applied Heath v Tea Tree Gully City Council (1996) 66 SASR 548, cited Insurance Commission of Western Australia v Container Handlers Pty Limited (2004) 218 CLR 89, applied JA & BM Bowden & Sons v Doughty [2009] NSWCA 82, cited Motor Accident Commission v ANI Corp Ltd and Another (1997) 26 MVR 57, applied Portlock v Baulderston Hornibrook Engineering Pty Ltd [2005] NSWSC 775, applied State Government Insurance Commission v Wagner (1993) 62 SASR 175, cited Townsville Trade Waste Pty Ltd v Commercial Union Assurance Company of Australia Ltd [1999] QCA 386, applied Transport Accident Commission v Treloar [1992] 1 VR 447, distinguished SC Williams QC and RB Dickson for the applicant DA Reid for the first respondent KF Holyoak for the second respondent B Ballment for the third respondent Jensen McConaghy Solicitors for the applicant Carter Newell Lawyers for the first respondent Mullins Lawyers for the second respondent Norton Rose for the third respondent

3 Background [1] The plaintiff, Joshua Colin Sichter, has sued the first and second defendants (applicant and second respondent respectively in the current proceedings) for damages for personal injuries caused by an incident which is alleged to have occurred at or about 8.40am on 26 February 2008, on the footpath adjacent to the property at 189 Broseley Road, Toowong ( the incident ). [2] The following facts relating to the circumstances of the incident were not in dispute for the purposes of the present application. At the relevant time, the plaintiff was standing adjacent to a recycling wheelie bin which had been positioned on the edge of the footpath ready for collection next to the general refuse wheelie bin. An ACCO International garbage collection truck ( the truck ) approached and pulled up in the street adjacent to the wheelie bins. The truck was configured with two driving positions, one on each side of the cab of the truck. [3] The driver of the truck was seated in the left-hand driver s seat when the truck approached the location of the bin. The truck was fitted with a mechanical arm, which was used to pick bins up from the footpath and hoist them so as to dump the contents of the bins into the body of the truck. At this point in time, the arm was retracted. The truck came to a halt near the recycling bin. The truck driver then caused the mechanical arm to operate away from the side of the truck in order to lift and empty the recycling bin. The driver engaged the grab of the mechanical arm, but it caught the plaintiff, causing his right leg to be crushed against the side of the bin and lifting him from the footpath. The driver heard a sound and noticed a woman, looked at the bin again and saw the plaintiff whose leg was caught in the grab. [4] On 30 July 2009, Peter Lyons J ordered that the following question be separately determined: Is the claim by Joshua Colin Sichter against SITA Australia Pty Ltd and Suncorp Metway Insurance Limited the subject of the notice of accident claim form in Exhibit AJR-3 to the affidavit of Anthony John Rosenthal filed in proceeding 7064/09, a claim which falls within section 5 of the Motor Accident Insurance Act 1994? [5] Section 5(1) of the Motor Accident Insurance Act 1994 ( MAIA ) relevantly provides that: (1) This Act applies to personal injury caused by, through or in connection with a motor vehicle if, and only if, the injury- (a) is a result of- (i) (ii) the driving of the motor vehicle; or a collision, or action taken to avoiding a collision, with the motor vehicle; [6] It was common ground that the Plaintiff s injuries were caused by, through or in connection with a motor vehicle. The issues for determination are whether the injury was a result of the driving of the motor vehicle or the result of a collision with the motor vehicle.

4 The statutory framework [7] Section 3 of the MAIA sets out the objects of the legislation: (a) to continue and improve the system of compulsory third-party motor vehicle insurance, and the scheme of statutory insurance for uninsured and unidentified vehicles, operating in Queensland; and (aa) to establish a basis for assessing the affordability of insurance under the statutory insurance scheme and to keep the costs of insurance at a level the average motorist can afford; and (b) to provide for the licensing and supervision of insurers providing insurance under policies of compulsory third-party motor vehicle insurance; and (c) to encourage the speedy resolution of personal injury claims resulting from motor vehicle accidents; and (d) to promote and encourage, as far as practicable, the rehabilitation of claimants who sustain personal injury because of motor vehicle accidents; and (e) to establish and keep a register of motor vehicle accident claims to help the administration of the statutory insurance scheme and the detection of fraud; and (f) to promote measures directed at eliminating or reducing causes of motor vehicle accidents and mitigating their results. [8] If the meaning of the words driving and collision as used in section 5(1)(a) are unclear then it would be appropriate to construe the legislation in accordance with the objects set out above, having regard to Parliament s intention to reduce costs by limiting the application of compulsory third-party insurance to injury arising out of motor vehicle accidents. [9] In case of ambiguity, regard might also be had to the relevant Second Reading Speech. It has been observed that the Second Reading Speech demonstrates that the purpose of the Act is beneficial 1, insofar as it was said: The purpose of this Bill is to provide for a compulsory third-party insurance scheme covering liability for personal injury arising out of motor vehicle accidents The need for this Bill today is as important as that previous legislation was in 1936 to care for all Queenslanders, and all Queenslanders may be comforted by its existence and the protection it affords the introduction of this Bill demonstrates the Government s commitment to review existing legislation with a view to modernising the benefits to be delivered. 2 [10] The Act replaced the Motor Vehicles Insurance Act 1936, which originally provided that motor vehicle insurance applied to any injury caused by, through or in 1 Townsville Trade Waste Pty Ltd v Commercial Union Assurance Company of Australia Ltd [1999] QCA 386 per McMurdo P at p4 2 Hansard 16 February 1994, p6902

5 connection with such motor vehicle. 3 This was further limited in 1988 by the addition of subsection 2(2): (2) Accidental bodily injury (fatal or non-fatal) caused on or after 22 September 1988 is not injury to which any provision of this Act applies unless it is a consequence of: (a) the driving of a motor vehicle; (b) a collision, or action to avoid a collision, with a motor vehicle when stationary; (c) a motor vehicle running out of control; or (d) a defect in a motor vehicle. [11] In the second reading speech to the Motor Vehicles Insurance Act Amendment Bill 1988 which enacted these amendments, the Minister said that the Bill was introduced as the result of a comprehensive review of the motor vehicle compulsory third-party insurance system in Queensland. The purpose of the amendments was said to ensure that cover of by, through or in connection with a motor vehicle relates to the more direct use of a vehicle and to ensure CTP liability is restricted just to that and is not extended to matters which are rightly workers compensation and public liability claims. [12] This limitation was substantially retained in the 1994 Act with minor amendments, specifically that in (2)(b) the requirement that the vehicle be stationary was removed, and in (2)(d) an additional requirement that the defect in the motor vehicle must cause loss of control of the vehicle while it was being driven was inserted. Driving of the motor vehicle [13] The term motor vehicle is defined as a vehicle for which registration is required under the Transport Operations (Road Use Management Vehicle Registration) Regulation 1999 and includes a trailer. 4 The garbage collection truck in this case was a motor vehicle under the Act. [14] Driving is not defined within the Act, but the interpretation of that term has been considered by the courts in jurisdictions which have substantially similar legislative provisions. A number of cases with similar factual scenarios were referred to by counsel. [15] In Insurance Commission of Western Australia v Container Handlers Pty Limited, 5 McHugh, Kirby, Callinan and Heydon JJ, in allowing the appeal from the Full Court of the Supreme Court of Western Australia, held that the injury suffered by a passenger in a prime mover which was hauling a low loader, when, after having stopped to repair the low loader, a jack slipped and caused an axle of the low loader to fall and crush the passenger s hand, was not a consequence of the driving of the vehicle. 3 Motor Vehicles Insurance Act 1936 (Qld), Section 2 4 Motor Accident Insurance Act 1994 (Qld), Section 4. 5 (2004) 218 CLR 89.

6 [16] In the court below, 6 it had been held that driving within the meaning of the Motor Vehicle (Third Party Insurance) Act 1943 (WA) ( the Motor Vehicle Act ) extended to include both the manner of control of a motor vehicle and the fact of its operation. [17] In overturning the decision of the Full Court of Western Australia, each member of the High Court delivered a separate judgment, McHugh, Kirby, Callinan and Heydon JJ agreeing that the injury was not within the scope of the insurance policy because the injury was not a consequence of the driving of the vehicle. McHugh J was of the view that the Full Court had erred in giving such a wide definition to the term driving, so as to encompass acts that do not fall within the meaning of driving, acts such as equipping the vehicle and undertaking repairs. 7 [18] Heydon J held that the scenario was outside the reach of the expressions driving or consequence of driving, 8 going no closer to driving than being acts preparatory to driving. To extend the meaning of the expression in this way would be contrary to the intentions and purpose of the Motor Vehicle Act. 9 [19] In Portlock v Baulderston Hornibrook Engineering Pty Ltd, 10 Hoeben J considered whether a mobile crane which was powered by its own motor and able to travel on public roads, but was temporarily in a stationary position when it tipped over injuring a person, fell within the ambit of driving of the vehicle in section 122 Motor Accidents Compensation Act 1999 (NSW). [20] His Honour noted that there is a distinction between operating the crane as a crane and driving it in the sense of actual control and management of the vehicle while it is moving 11 and concluded that: 12 the plaintiff was not driving the crane when the accident occurred. The crane was stationary. No locomotion was intended or attempted. All that the plaintiff was doing was controlling the lifting mechanism of the crane. In those circumstances I am of the opinion that the injury did not occur as a result of nor was it caused during the driving of the crane. [21] The reasoning of Hoeben J in Portlock was followed by the New South Wales Court of Appeal in JA & BM Bowden & Sons v Doughty. 13 [22] Motor Accident Commission v ANI Corp Ltd and Another 14 concerned injury to a plaintiff who fell from the back of a stationary semi-trailer while acting as an assistant to a forklift driver whose task it was to move a quantity of steel frames (called stillages) from a stack in the employer s depot and load them onto the tray of a semi-trailer. It was not disputed that the bodily injury to the plaintiff occurred as a 6 Container Handlers Pty Ltd v Insurance Commission (WA) (2001) 25 WAR 42. 7 Insurance Commission of Western Australia v Container Handlers Pty Limited (2004) 218 CLR 89 at 109. 8 Insurance Commission of Western Australia v Container Handlers Pty Limited (2004) 218 CLR 89 at 144. 9 Insurance Commission of Western Australia v Container Handlers Pty Limited (2004) 218 CLR 89, Heydon J at p 139-140. 10 [2005] NSWSC 775. 11 At [69]. 12 At [72]. 13 [2009] NSWCA 82. 14 (1997) 26 MVR 57.

7 result of the use of the forklift but liability was limited to death or bodily injury arising out of the use of a motor vehicle which was a consequence of the driving of the vehicle. 15 [23] Cox J (with whom Lander J agreed) noted that it is clear.that [the forklift operator] had brought the forklift alongside the semi-trailer and come to a stop, and had then lifted the load vertically in order to clear the tray, before the plaintiff fell. [24] The evidence in that case was that while the forklift was loading the semi-trailer, some minute movements backwards and forwards of the vehicle may have been incidental to the vertical lifting movement. The trial judge had held that if the incident occurred during a minute forward or backward movement, then it was in the course of driving. In considering this issue, Cox J commented: 16 I do not think, with respect, that s 99 requires that kind of factual microanalysis in a situation such as this. It is not just a question whether the forklift s driving wheels were turning at a critical time. No-one suggested that [the forklift operator] was not driving the forklift, as section 99 understands that expression, before he stopped it alongside the semi-trailer. However, once he was there and had started to raise the tines in order to place the stillages onto the tray, he was no longer driving the forklift, in my opinion, but simply using the vehicle as a loading device. His use of it did not cease to have an exclusive non-driving character simply because (if it was the case) there were interspersed between the raising and lowering of the tines, in the dominant activity of loading and at the same place, small shuffling movements of the forklift, backwards and forwards, as the driver deposited the stillages in their different positions on the tray. The top stillage fell only because of the way the forklift was operated in the course of loading the semi-trailer. In my opinion, the learned judge should have found on the evidence that the plaintiff s injuries were not a consequence of the driving of the forklift. [25] Cox J considered this to be consistent with earlier decisions of the South Australian Full Court 17 which recognised a need to distinguish between a vehicle s different functions, so that it may be driven on one occasion and used in a different mode immediately although possibly all within a single overall activity. His Honour did comment that there may be cases where a meticulous fragmentation of a vehicle s operations will be unrealistic. 18 [26] In his dissenting judgment, Bleby J considered that the distinction between loading goods onto a forklift and driving the forklift was an artificial one, as the process of loading and unloading the forklift necessarily involves driving the forklift. 19 15 Motor Vehicles Act 1959 (SA), s99. 16 at page 62. 17 State Government Insurance Commission v Wagner (1993) 62 SASR 175; Heath v Tea Tree Gully City Council (1996) 66 SASR 548. 18 At page 62. 19 Motor Accident Commission v ANI Corp Ltd and Another (1997) 26 MVR 57 at p79.

8 [27] Similarities can be identified between this situation and the present case. It could not be said that the garbage truck driver was not driving the vehicle prior to bringing the truck to a stationary position adjacent to the wheelie bin. But it could be said that when it stopped and the bin lifting mechanism was engaged, the truck driver, applying the logic of Cox J, was no longer driving the vehicle, but rather using it as a lifting device. [28] Counsel for the second respondent submitted that what was important to take from Motor Accident Commission v ANI, was the concept of an overall activity, which in this case would encompass the continual stopping and starting to pick up bins. Cox J, however, recognised that it was possible for a vehicle to be driven on one occasion and used in a different mode immediately afterwards, even as part of a single overall activity. 20 [29] Portlock and Motor Accident Commission v ANI both involved vehicles which were clearly capable of being driven, but which had additional lifting mechanisms which could be operated either independently of or concurrently with driving. The cases draw a clear distinction between the actual driving of the vehicle, in the sense of locomotion, and the operation of the lifting device independently of driving. It has been accepted by all parties in the present case that the garbage truck was stationary at the time of the incident. The sole activity at the time of the incident was the operation of the lifting mechanism for the purpose of grasping and raising the garbage bin. [30] Counsel for the second respondent relied heavily on the case of Transport Accident Commission v Treloar 21 to support a submission that the relevant factor was an overall activity which could include stopping at various locations. In that case, the Victorian Court of Appeal heard three appeals from decisions of the deputy president of the Administrative Appeals Tribunal. In two of the appeals, the issue before the court was whether injuries sustained by a bus passenger, while boarding or alighting from the bus in the course of its ordinary operations, were injuries arising out of the driving of the bus. The bus was stationary at the time of each incident. [31] The first appeal, Transport Accident Commission v Pedersen, concerned an application for compensation by Mrs Pederson on the basis that her husband had died as a result of a transport accident under the Transport Accident Act 1986 (Vic). Mr Pedersen fell while alighting from a bus. The applicant s case before the tribunal was, in essence, that Mr Pedersen s fall was due to the bus having been stopped at a place where the passengers had to step in the dark on to rough and irregular ground. Under the Transport Accident Act, a transport accident was defined as an incident directly caused by, or directly arising out of the driving of a motor car, a railway train or a tram. The deputy president based his decision on the basis that a person was driving a motor car, if that person was in charge of the motor car. [32] McGarvie and Gobbo JJ held that the word driving in this definition was used in its ordinary sense and did not include being in charge of a motor car as it would 20 At page 62. 21 [1992] 1 VR 447.

9 widen the activity of driving beyond its normal meaning. Their Honours stated: 22 An incident is caused by the driving of a motor car if it is caused by some feature of the driving such as the speed at which, the inattention with which or the place to which the car is driven. [33] In analysing the factual scenario in Pedersen, McGarvie and Gobbo JJ supported the deputy president s finding that the injuries resulted from an accident which would not have occurred had it not been for the bus being driven to and stopped at an inappropriate place for the passengers to alight: 23 In our opinion, it could not be said that the incident from which Mr Pedersen s injures resulted was too remote or indirect a consequence of the bus driver s action in stopping where he did, to be regarded in law as directly caused by it. It follows that a finding would be open that the incident was directly caused by the driving of the bus. [34] The second appeal, Transport Accident Commission v Treloar, concerned injuries sustained by Mrs Treloar as she boarded the bus. Mrs Treloar lost her footing on the second step and fell onto the lowest step and was injured. [35] The deputy president had held that: Injuries sustained by a passenger who falls while endeavouring either to board or alight from a bus in the course of its ordinary operations are, in my view, injuries directly arising out of the driving of the bus. [36] McGarvie and Gobbo JJ concluded that this finding was not open to the deputy president. In their opinion, the fall which resulted in Mrs Treloar s injury was not a direct consequence of the driving of the bus nor was the driving a factor which directly contributed to the fall. 24 [37] Counsel for the second respondent submitted that these statements should be read to indicate that what was essential in that case was the overall activity of the driving of the bus which included stopping at various locations. I disagree. While in the first appeal of Pedersen, it was concluded that the inappropriate place to which the bus was driven was a consequence of the driving of the vehicle, in the second appeal, which also contained an overall activity of the driving of a bus, including stopping at various occasions, it was held that the injuries were not a consequence of the driving of the bus. It would be unsound to extrapolate from the decision that the overall activity being the driving of the bus was the decisive factor in that case. [38] Returning to the present case, the garbage truck, during the course of its normal run, was brought to a stationary position beside the wheelie bin. At this stage no movement in the traditional sense of driving was intended and the driver of the truck had engaged the mechanical arm of the truck in order to grab and raise the wheelie bin. There is a clear distinction between operating the garbage truck 22 At page 450. 23 At page 451. 24 Transport Accident Commission v Treloar [1992] 1 VR 447 at p453.

10 mechanical lifting device on the one hand and, on the other, driving the truck in the sense of actual control and management of the vehicle while it is moving. The driving of the vehicle had ceased, albeit temporarily. [39] This was not a case where it could be said that the injury was caused by the speed with which the truck was driven or the place to which it was driven. The injury was directly caused by the allegedly negligent operation of the lifting device attached to the truck. [40] Accordingly, I find that the injury was not a result of the driving of the motor vehicle under section 5(1)(a)(i) of the Act. Collision with vehicle [41] In the alternative, it is submitted by counsel for the second respondent that the incident falls within the ambit of section 5(1)(a)(ii), because it was a collision with the vehicle. [42] The leading case on point is Townsville Trade Waste Pty Ltd v Commercial Union Assurance Company of Australia Limited 25 in which the court was concerned with whether the situation where an employee was crushed by the falling body of a garbage truck was a collision under s 5(1)(a)(ii) of the Act. [43] The majority of the court, 26 in separate reasons, held that the facts did not fall within the definition of collision under the Act. Counsel for the appellant in that case referred to and relied upon several dictionary meanings of collision which indicate that collision with means violent contact with. 27 [44] Davies JA said: 28 It must be said at the outset that, despite the wide dictionary definition of collision, one would not ordinarily describe the deceased s unfortunate accident as a collision with a motor vehicle. Rather one would say that he was crushed by the falling body of the truck. The question is, however, whether that phrase has a wider or different meaning in its statutory context. No help can be derived, in answering that question, either from the objects stated in the Act or from any extrinsic material other than s 2(2) of the Motor Vehicles Insurance Act 1936, which was the predecessor of s 5(1), and a statement of its purpose, to both of which I shall refer below. Of the four subparagraphs of s 5(1)(a), three of them, par (i), par (ii) and par (iv) appear to be limited in their operation, not only to an injury which results from the functioning of a motor vehicle as a motor vehicle but to one which results from the movement of a motor vehicle as a motor vehicle. The critical subparagraph, subpar (ii) is not restricted in its operation to an injury resulting from a collision with a moving vehicle; but the question is whether it is, like 25 [1999] QCA 386. 26 Davies JA and White J; McMurdo P dissenting. 27 Townsville Trade Waste Pty Ltd v Commercial Union Assurance Company of Australia Limited [1999] QCA 386 at para [34] per White J. 28 At [21].

11 the other subparagraphs, restricted to an injury resulting from a collision with a vehicle (whether moving or stationary) in its capacity or function as a motor vehicle. The learned primary judge held, in effect, that it was; as his Honour put it, qua a vehicle. There are at least two reasons, already referred to in passing, why, in my view, that conclusion is correct. The first is that it excludes from the operation of subpar (ii) an event which would not, in ordinary language, be thought of as a collision with a motor vehicle. The second is that it restricts the operation of subpar (ii) to a category consistent with the restricted operation of the other subparagraphs. The subparagraphs as a whole then provide a consistent and coherent basis for the application of the section. [45] Accordingly, the relevant question in the present case is whether the incident by which a stationary pedestrian was injured by being picked up by the mechanical arm of a garbage truck was a result of a collision with a vehicle in the capacity or character of a vehicle. There is no requirement that the vehicle be moving at the time for a collision to be said to have occurred. [46] The facts in Townsville Trade and Waste were quite different from the present. In that case, the truck was undergoing repairs in a mechanic s workshop. The truck s hydraulic ram was used to raise the rear section of the truck which contained a garbage compactor, from the chassis. The deceased was standing on the chassis under the elevated rear body making repairs, when the hydraulics failed and the compactor fell on him causing injuries from which he died. This was a situation which would not have been ordinarily described as a collision; rather that he was crushed by the falling body of a truck. [47] In agreeing with the trial judge that to characterise what occurred as a collision with a motor vehicle is a significant departure from the natural meaning and use of the expression, and concluding that these circumstances do not fall within its meaning, White J made the following comments: 29 [Counsel] for the respondent suggested that each of ss (1)(a)(i)(iii) and (iv) envisages the subject motor vehicle as an entire entity and ss (ii) requires the same approach. This would exclude the circumstances in which the deceased sustained his injury, on this analysis, because only part of the vehicle fell and struck the deceased. This is not an immediately attractive argument because if, for example, the motor vehicle were on a separate hoist which failed and the motor vehicle fell crushing a person working underneath it may be difficult to resist the conclusion that what occurred was a collision with the motor vehicle. However even this is an awkward use of the word collision. There are circumstances which may well fall on one side or the other of what might be described as a collision with a motor vehicle within the meaning of s 5(1)(a)(ii) with only a slight variation in the facts. For example, would focussing on the wholeness of the motor vehicle exclude a situation where a car door of a stationary vehicle is opened carelessly so that it 29 At [35].

12 strikes and injures a stationary pedestrian or a moving bicyclist. The latter example may easily be described as a collision with a motor vehicle while the former does not do so readily. But opinions may well differ. [48] In AMP General Insurance Ltd v Kull 30 Hodgson JA held that it would be a significant departure from the natural meaning of collision, to say that the situation whereby a person placed his hand on the fan belt of a vehicle and the ignition was initiated causing the fan belt to move and the person s hand to become jammed in the mechanism was a collision with the vehicle. His Honour added: 31 The contact of a pedestrian with a stationary vehicle could possibly fall within that expression; and such a collision could be with an appendage to the vehicle, such as a wing mirror. But there at least has to be injury caused by an impact that can fairly be described as a collision with the vehicle, that is, an impact due to the mutual motion of whatever collides with the vehicle and the vehicle itself. [49] In natural and ordinary language, the present incident would not readily be described as a collision. What happened was that the plaintiff was picked up, or collected by the lifting mechanism of the truck. There was no mutual motion, to use the term of Hodgson JA, between the truck and the plaintiff. [50] To classify this incident as a collision would go beyond the meaning of that word in s 5(1)(a)(ii). Conclusion [51] Accordingly, I conclude that the separate question whether the claim by Joshua Colin Sichter against SITA Australia Pty Ltd and Suncorp Metway Insurance Limited the subject of the notice of accident claim form in Exhibit AJR-3 to the affidavit of Anthony John Rosenthal filed in proceeding 7064/09 is a claim which falls within section 5 of the Motor Accident Insurance Act 1994 should be answered in the negative. [52] I will hear the parties as to further directions and as to costs. 30 (2005) 44 MVR 339. 31 At [52].