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Palframan v Jackson's House Removals (a firm)

 

[2003] QCA 202

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

Palframan v Jackson’s House Removals (a firm) & Ors; Fisher & Ors v Bocorp P/L & Ors; Palframan v Jackson’s House Removals (a firm) & Ors [2003] QCA 202

PARTIES:

DONALD WAYNE PALFRAMAN

(plaintiff)

v

JACKSON’S HOUSE REMOVALS (A FIRM)

(defendant)

L’UNION DES ASSURANCES DE PARIS ARBN 000 000 902

(first third party/appellant)

BOCORP PTY LTD ACN 062 087 503

(second third party)

SUNCORP METWAY INSURANCE LTD ACN 075 695 966

(fourth third party/respondent)

VIRGINIA GUEVARRA FISHER

(first plaintiff)

JAMES DOMINIC FISHER (WHO SUES BY HIS NEXT FRIEND VIRGINIA GUEVARRA FISHER)

(second plaintiff)

LYNN MAY FISHER (WHO SUES BY HER NEXT FRIEND VIRGINIA GUEVARRA FISHER)

(third plaintiff)

v

BOCORP PTY LTD ACN 062 087 503

(first defendant)

ROLAND JAMES JACKSON

(second defendant)

L’UNION DES ASSURANCES DE PARIS ARBN 000 000 902

(first third party/appellant)

SUNCORP METWAY INSURANCE LTD ACN 075 695 966

(third third party/respondent)

MARIA SALVACION PALFRAMAN

(plaintiff)

v

JACKSON’S HOUSE REMOVALS (A FIRM)

(defendant)

L’UNION DES ASSURANCES DE PARIS ARBN 000 000 902

(first third party/appellant)

BOCORP PTY LTD ACN 062 087 503

(second third party)

ACE-IRM INSURANCE BROKING GROUP PTY LTD ACN 010 596 700

(third third party)

SUNCORP METWAY INSURANCE LTD ACN 075 695 966

(fourth third party/respondent)

FILE NO/S:

Appeal No 10119 of 2002

SC No 59 of 1997

SC No 32 of 1998

SC No 5 of 1998

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

23 May 2003

DELIVERED AT:

Brisbane

HEARING DATE:

15 May 2003

JUDGES:

de Jersey CJ, Davies and Jerrard JJA

Judgment of the Court

ORDER:

Appeal dismissed with costs to be assessed

CATCHWORDS:

INSURANCE – GENERAL – POLICIES OF INSURANCE – CONSTRUCTION – where insurance contract provided cover for vehicles – where insurance contract defined vehicle as self-propelled unless context specifically provided to the contrary – where prime mover provided means of trailer’s propulsion – where legislation provided different definition of vehicle – whether trailer a vehicle

Motor Accident Insurance Act 1994 (Qld)

Motor Vehicle (Third Party Insurance) Act 1943 (WA), s 3(1), s 3R(2)

Transport Infrastructure (Roads) Regulation 1991 (Qld)

Container Handlers Pty Ltd v Insurance Commission of Western Australia & Ors [2001] WASCA 304; (2001) 25 WAR 42, distinguished

Johnson v American Home Assurance Company (1998) 192 CLR 266, considered

COUNSEL:

D A Savage SC for the appellant

A M Daubney SC, with K L Jackson, for the respondent

SOLICITORS:

Deacons for the appellant

Quinlan Miller & Treston for the respondent

  1. THE COURT:  The appellant appeals against a learned Judge's determination that an exclusion clause in an insurance policy was inapplicable to the situation which arose.
  1. The claim for indemnity arose from an incident which occurred during the removal of a house from a property at Mackay. The removalists were using a prime mover and a trailer. The law required each be registered. They were joined, and the prime mover supplied the means of propulsion which the trailer otherwise lacked. At the time of accident, which involved the death of one person and injury to others, part of the removed house being worked on from the stationary trailer collapsed. The issue determined by the primary Judge was whether the appellant was obliged to contribute to a payout otherwise to be borne completely by another insurer.
  1. The appellant claimed its liability was excluded by cl 9 of its policy. The relevant parts of that policy follow:

"Definitions

Whenever appearing in the Policy or any annexes forming part hereof, the following terms shall, unless the context specifically provides to the contrary, be interpreted in the manner described below:

  1. Vehicle

Any type of machine on wheels or on caterpillar tracks made or intended to be self propelled by mechanical power.

Exclusions

This policy does not cover:

  1.               Property damage to:

(c)property which is in the Insured's care, custody or control, but this Exclusion 2.(c) shall not apply to:

(ii)Vehicles (other than Vehicles owned or used by or on behalf of the Insured) in the care, custody or control of the Insured whilst such Vehicles are in a car park owned or operated by the Insured other than for income or reward as a car park operator.

  1. Any liability arising out of the use of any Vehicle owned by or in the physical or legal control of the Insured:

(a)which is required to be registered by virtue of any               legislation relating to Vehicles;  or

(b)in respect of which insurance is required by virtue of any legislation relating to Vehicles.

This Exclusion 9. shall not apply to Vehicles described in Exclusion 2.(c)(ii)."

  1. The learned Judge held any liability arose out of use of the trailer, not a combination of the trailer and the prime mover to which it was then attached. The point is significant because on one view – the view accepted by the Judge – the exclusion in cl 9 applied only where liability arose from use of a "Vehicle" as previously defined, that is, a machine self-propelled. The trailer did not fit that description. The Judge rejected a submission that the relevant "vehicle" was the dual, prime mover/trailer combination. He said:

"The problem with this argument is that the low loader is not an integral part of the prime mover.  It is a separate and detachable piece of machinery on wheels which requires affixation to some other piece of equipment only because it is not self propelled.  The prime mover was irrelevant to this particular case.  Since the low loader is not an integral part of the prime mover and is recognised as a discrete vehicle by being required to be separately registered and insured it seems to me difficult to find any rational basis for not treating it as a separate vehicle for the purposes of the policy."

  1. Taking the view that any liability arose from the use of the trailer alone, the Judge, finding the trailer was not a "Vehicle" as defined in the policy, held cl 9 of the exclusions inapplicable, because it depended upon the involvement of a "Vehicle". Especially having regard to the persistent use in the provision of the upper case "V", the Judge considered that "Vehicle" wherever used in this provision meant "Vehicle" as expressly defined – that is, not embracing non self-propelled trailers.
  1. The appellant challenged that approach, submitting, in terms of the opening words of the definition section, that the cl 9 context "specifically provides to the contrary" in referring to legislation requiring the registration and insurance of motor vehicles. In this State, the Transport Infrastructure (Roads) Regulation 1991 taken with the Motor Accident Insurance Act 1994 would necessitate insurance against liability for personal injury caused by, through or in connection with a non self-propelled trailer, the regulation necessitating registration in respect of a "vehicle", which is defined to include such a trailer.  The learned Judge took the view that the inclusion of the definition in the policy, and the repeated use throughout the relevant provisions of the upper case "Vehicle" (by contrast with the use of the lower case "v" elsewhere – for example in the "definitions" section clauses 11 and 12), suggested the parties meant that the contractual definition should apply to cl 9.
  1. His Honour was correct, for the reasons he expressed, to regard the relevant "vehicle" as being the trailer. The trailer, not being self-propelled, was not a "Vehicle" as defined in the policy. On the face of it, the repeated use of the capitalized "V" thereafter in the relevant provisions strongly suggests the previously expressed definition was to apply. If so, cl 9, as the Judge held, did not apply.
  1. The short issue on this appeal is whether the "context" following the definition, "specifically provides to the contrary", that is, "specifically provides" that the expressed definition should not apply.
  1. For its contention that the context does specifically provide to the contrary, the appellant emphasized the reference in cl 9 to the legislative requirements for registration and insurance of vehicles. There is no doubt in this State they extend to liability arising from the use of a trailer as here. Counsel submitted "the obvious intention derived from the context is to exclude liability already covered by a statutory policy".
  1. An alternate view, however, is that the policy was concerned to confirm the existence of insurance cover for liability in respect of non self-propelled vehicles, even though there might be separate statutory cover, lest there be any doubt as to the scope of that independently available cover; while at the same time confirming, also, that the cover would certainly not be available in respect of the more ordinarily occurring liability as to self-propelled vehicles, the statutory cover in those situations being more readily and universally acknowledged.
  1. The appellant's ultimate difficulty is that the exclusion may sensibly operate if confined, as its term suggest, to self-propelled vehicles; and those terms do directly and strongly indicate an intention that the exclusion should operate in that way. The mere reference to legislative requirements does not establish a context "specifically providing" that the term "Vehicle" where used in cl 9 should include non self-propelled vehicles notwithstanding the earlier direct prescription to the contrary. That is because there is no need, in order to give cl 9 a commercially sensible operation, that it be read in that more expansive way.
  1. The appellant relied substantially on the decision of the West Australian Full Court in Container Handlers Pty Ltd v Insurance Commission of Western Australia & Ors [2001] WASCA 304.  In that case, it was argued that construed this way, the issue of this policy would contravene a provision in the Western Australian Motor Vehicle (Third Party Insurance) Act which prohibited parties other than a departmental Director General from issuing what we term third party contracts of insurance.  There is no such provision in Queensland.
  1. The Full Court was in that case constrained to regard the reference to "Vehicle" in cl 9 as embracing the statutory definition, notwithstanding the earlier expressed contractual definition. The Court regarded the references to the legislation as amounting to a "specific provision" to the contrary. As it was put (per Roberts-Smith J):

"For the purposes of exclusion cl 9 the word "vehicle" was intended to have the same meaning as the term "motor vehicle" in s 3(1) of the MV Act. Exclusion cl 9 is expressly concerned to exclude any liability arising out of the use of vehicles which legislation relating to vehicles requires to be registered or insured.  Giving to this a business-like interpretation requires attention to the commercial circumstances and social purposes for which it was written.  I accept Mr McCormack's submission that this involves appropriate recognition of the compulsory third party insurance scheme established by the MV Act and the RT Act.  Acceptance of the appellant's argument on this would produce the result that (certainly in the circumstances of this case) the UAP policy was intended to, and did, provide insurance cover in addition to the statutory cover and in contravention of s 3R(2) of the MV Act.  That construction was plainly not what was intended."

  1. We were urged to take the same approach, in order to avoid producing disconformity (cf Johnson v American Home Assurance Company (1998) 192 CLR 266, 273).  But this court should not, with respect, endorse that reasoning in the disposition of this case in Queensland.  First, there is a very strong textual indication that the contractual definition of "Vehicle" was meant to apply to cl 9.  Second, reading cl 9 that way does not produce a result, as applicable in this case, in any degree commercially unrealistic.  Third, there is in Queensland no statutory prohibition – as in Western Australia – on the existence of duplicate cover in a situation like this.
  1. The learned primary Judge's analysis of this aspect warrants endorsement:

"Notwithstanding what was said by the Court of Appeal in Western Australia in Container Handlers I cannot accept that the definition does not apply to the low loader.  To find otherwise is to reject the meaning of the word "Vehicle" the parties to the policy have expressly given it and to torture what I regard as the plain and unambiguous language of the policy more than it will bear.  While it is obviously unsatisfactory that the same policy might be construed differently in different states I am compelled to reject UAP's primary submission.  The Western Australian decision seems to me to be based upon the statutory framework for CTP insurance peculiar to that state.  I do not regard what was said by Kirby J in Johnson v American Home Assurance as being applicable to the construction of this policy.  The word "Vehicle" defined in this policy does not have a settled meaning in the sense to which his honour referred.  Instead there is a decision of a state appellate court which has declined to apply the definition because of a perceived inconsistency between the policy as written if the word is given its defined meaning and the CTP legislation in that jurisdiction."

  1. The appeal is dismissed, with costs to be assessed.
Close

Editorial Notes

  • Published Case Name:

    Palframan v Jackson’s House Removals (a firm) & Ors; Fisher & Ors v Bocorp P/L & Ors; Palframan v Jackson’s House Removals (a firm) & Ors

  • Shortened Case Name:

    Palframan v Jackson's House Removals (a firm)

  • MNC:

    [2003] QCA 202

  • Court:

    QCA

  • Judge(s):

    de Jersey CJ, Davies JA, Jerrard JA

  • Date:

    23 May 2003

  • White Star Case:

    Yes

Litigation History

No Litigation History

Appeal Status

No Status